UC-NRLF 


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GUIDET 

TO 


THE  ARTICLES  OF  WAR 


WAMBAUGH 


INTERLEAVED  NOTE-BOOK  EDITION 


GIFT   OF 


I  irrr    !■     -^    I    III  III  !■!  ,1  iiiii  -  '^  .^..■— 


f 


GUIDE 

TO 

THE  ARTICLES  OF  WAR 

Prepared  for 

The  Reserve  Officers'  Training  Corps 

of  Harvard  University 

BY 

EUGENE  WAMBAUGH,  LL.D. 

Professor  in  the  Law  School  of  Harvard  University 

Major  and  Judge  Advocate  in  the  Officers'  Reserve  Corps 

OF  the  United  States  Army 


Interleaved  Ncte-Book  Ei^ition 


CAMBRroOE 

HARVARD  UNIVERSITY  PRESS 

1917 


Copyright,  1917 
By  Eugene  Waaibaugh 


/- 


Engir.eerinS- 
Libr&ry 


THE  CNIVERSITT  PRESS,    CAMBRIDGE,    U.S.A. 


PREFACE 

In  the  Army,  knowledge  of  the  Articles  of  War  is  not  a  luxury 
but  a  necessity.  The  beginner  in  military  matters  will  do  well 
to  carry  the  Articles  of  War  in  his  pocket. 

Hence  this  little  book. 

Part  I  gives  those  |K)rtions  of  the  Constitution  of  the  United 
States  which  expressly  or  argumentatively  serve  as  a  founda- 
tion for  the  Articles  of  War. 

Part  n  gives  the  Articles  of  War  themselves,  and  adds  refer- 
ences to  some  of  the  relevant  passages  in  the  Manual  for 
Courts-Martial,  edition  of  1917  —  the  official  pubhcation  which 
is  in  effect  a  commentary  upon  the  Articles  of  War. 

Part  III  gives  practical  problems. 

To  read  the  Articles  of  War  again  and  again,  to  apply  them 
to  the  problems  herein  given  and  to  others,  to  write  queries  and 
comments,  and  to  study  the  Manual  for  Courts-Martial  —  this 
is  the  way  to  know  the  Articles  of  War  as  they  should  be  known. 
Even  the  beginner  may  soon  be  able  to  call  many  of  them  by 
their  numbers;  and  doubtless  among  these  will  be  A.  W.  54, 
58,  61,  62,  63,  64,  65,  69,  75,  83,  84,  85,  86,  93,  94,  95,  and  96. 

Finally,  it  should  be  borne  in  mind  that  the  present  Articles 
of  War  were  approved  on  August  29,  1916,  and,  with  a  few  ex- 
ceptions, did  not  go  into  effect  until  March  1,  1917,  and  that 
consequently  all  documents  or  treatises  earher  than  1917 
must  be  used  with  caution. 

E.  W. 

Cambridge,  Mass.,  May  30,  1917. 


3 98 J  76 


GUIDE  TO  THE  ARTICLES 

OF  WAR 

PART  I 

EXTRACTS  FROM  THE  CONSTITUTION  OF 
THE  UNITED  STATES^ 

We  the  People  of  the  United  States,  in  Order  to  form  a 
more  perfect  Union,  establish  Justice,  insure  domestic  Tran- 
quility, provide  for  the  common  defence,  promote  the  general 
Welfare,  and  secure  the  Blessings  of  Liberty  to  ourselves  and 
our  Posterity,  do  ordain  and  establish  this  Constitution  for 
the  United  States  of  America. 

Article  I,  Section  8.     The  Congress  shall  have  Power  .  !  . 

[11]  To  declare  War,  .  .  .  and  make  Rules  concerning 
Captures  on  Land  and  Water; 

[12]  To  raise  and  support  Armies,  but  no  Appropriation  of 
Money  to  that  Use  shall  be  for  a  longer  Term  than  two  Years; 

[13]     To  provide  and  maintain  a  Navy; 

[14]  To  make  Rules  for  the  Government  and  Regulation 
of  the  land  and  naval  Forces; 

[15]  To  provide  for  calling  forth  the  Militia  to  execute  the 
Laws  of  the  Union,  suppress  Insurrections  and  repel  Invasions; 

[16]  To  provide  for  organizing,  arming,  and  disciplining,  the 
Militia,  and  for  governing  such  Part  of    them  as  may  be  em- 


^  An  attempt  is  here  made  to  present  all  parts  of  the  Constitution 
which  serve  as  a  basis  for  the  Articles  of  War. 


ployed  in  the  Service  of  the  United  States,  reserving  to  the 
States  respectively,  the  Appointment  of  the  Officers,  and  the 
Authority  of  training  the  Militia  according  to  the  discipline 
prescribed  by  Congress;  ... 

[18]  To  make  all  Laws  which  shall  be  necessary  and  proper 
for  carrying  into  Execution  the  foregoing  Powers,  and  all  other 
Powers  vested  by  this  Constitution  in  the  Government  of  the 
United  States,  or  in  any  Department  or  Officer  thereof. 

Art.  II,  Sec.  2.  [1]  The  President  shall  be  Commander  in 
Chief  of  the  Army  and  Navy  of  the  United  States,  and  of  the 
Militia  of  the  several  States,  when  called  into  the  actual  Service 
of  the  United  States;  .  .  .  and  he  shall  have  Power  to  grant 
Reprieves  and  Pardons  for  OfiFences  against  the  United  States, 
except  in  Cases  of  Impeachment. 

Art.  rV,  Sec.  4.  The  United  States  shall  guarantee  to  every 
State  in  this  Union  a  Republican  Form  of  Government,  and 
shall  protect  each  of  them  against  Invasion ;  and  on  Application 
of  the  Legislature,  or  of  the  Executive  (when  the  Legislature 
cannot  be  convened)  against  domestic  Violence. 

Amendment  V.  No  person  shall  be  held  to  answer  for  a 
capital,  or  otherwise  infamous  crime,  unless  on  a  presentment 
or  indictment  of  a  Grand  Jury,  except  in  cases  arising  in  the 
land  or  naval  forces,  or  in  the  Militia,  when  in  actual  service  in 
time  of  War  or  public  danger;  nor  shall  any  person  be  subject 
for  the  same  offence  to  be  twice  put  in  jeopardy  of  life  or  limb; 
nor  shall  be  compelled  in  any  criminal  case  to  be  a  witness  against 
himself,  nor  be  deprived  of  life,  liberty,  or  property,  without 
due  process  of  law ;  nor  shall  private  property  be  taken  for  public 
use,  without  just  compensation. 


PART  II 
THE  ARTICLES  OF  WAR  —  WITH  REFERENCES  ^ 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled  .  .  . 

Sec.  3.  That  section  thirteen  hundred  and  forty-two  of  the 
Revised  Statutes  of  the  United  States  be,  and  the  same  is  hereby, 
amended  to  read  as  follows: 

"Sec.  1342.  The  articles  included  in  this  section  shall  be 
known  as  the  Articles  of  War  and  shall  at  all  times  and  in  all 
places  govern  the  armies  of  the  United  States.  [M.C.M.,  pages 
IX-X.] 

"I.  PRELIMINARY  PROVISIONS 

"Article  1.  Definitions.  —  The  following  words  when 
used  in  these  articles  shall  be  construed  in  the  sense  indicated 
in  this  Article,  unless  the  context  shows  that  a  different  sense 
is  intended,  namely: 

"(a)  The  word  'oflScer'  shall  be  construed  to  refer  to  a  com- 
missioned officer; 


1  The  citations  here  appended  to  each  of  the  Articles  of  War  refer 
to  "A  Manual  for  Courts-Martial,"  revised  in  the  Judge  Advocate 
General's  Office  in  1916  and  published  by  the  Government  Printing  Office, 
the  impression  used  being  the  one  "corrected  to  Apr.  15,  1917." 

The  text  of  the  Articles  of  War  is  taken  from  "  An  Act  Making  appro- 
priations for  the  Support  of  the  Army  for  the  fiscal  year  ending  June 
thirtieth,  nineteen  hundred  and  seventeen,  and  for  other  purposes," 
approved  Aug.  29,  1916,  and  printed  in  39  United  States  Statutes  at 
Large,  Part  I,  chap.  418,  pages  619,  650-670.  The  Articles  of  War 
are  also  found  in  M.C.M.,  pages  308-329. 


"(b)  The  word  'soldier'  shall  be  construed  as  including  a 
non-commissioned  officer,  a  private,  or  any  other  enlisted  man; 

"(c)  The  word  '  company '  shall  be  understood  as  including  a 
troop  or  battery;  and 

"(d)  The  word  'battalion'  shall  be  understood  as  including 
a  squadron.     [M.C.M.,  pars.  ^,  8.] 

"Art.  2.  Persons  subject  to  military  law.  —  The  fol- 
lowing persons  are  subject  to  these  articles  and  shall  be  under- 
stood as  included  in  the  term  'any  person  subject  to  military 
law,'  or  'persons  subject  to  mihtary  law,'  whenever  used  in 
these  articles:  Provided,  That  nothing  contained  in  this  Act, 
except  as  specifically  provided  in  Article  two,  subparagraph 
(c),  shall  be  construed  to  apply  to  any  person  under  the  United 
States  naval  jurisdiction,  unless  otherwise  specifically  provided 
by  law. 

"  (a)  All  officers  and  soldiers  belonging  to  the  Regular  Army 
of  the  United  States;  all  volunteers,  from  the  dates  of  their 
muster  or  acceptance  into  the  military  service  of  the  United 
States;  and  all  other  persons  lawfully  called,  drafted  or  ordered 
into,  or  to  duty  or  for  training  in,  the  said  service,  from  the 
dates  they  are  required  by  the  terms  of  the  call,  draft  or  order 
to  obey  the  same; 

"(b)  Cadets; 

"  (c)  Officers  and  soldiers  of  the  Marine  Corps  when  detached 
for  service  with  the  armies  of  the  United  States  by  order  of  the 
President:  Provided,  That  an  officer  or  soldier  of  the  Marine 
Corps  when  so  detached  may  be  tried  by  military  court-martial 
for  an  offense  committed  against  the  laws  for  the  government 
of  the  naval  service  prior  to  his  detachment,  and  for  an  offense 
committed  against  these  articles  he  may  be  tried  by  a  naval 
court-martial  after  such  detachment  ceases; 

"  (d)  All  retainers  to  the  camp  and  all  persons  accompanying 
or  serving  with  the  armies  of  the  United  States  without  the  ter- 


ritorial  jurisdiction  of  the  United  States,  and  in  time  of  war  all 
such  retainers  and  persons  accompanying  or  serving  with  the 
armies  of  the  United  States  in  the  field,  both  within  and  without 
the  territorial  jurisdiction  of  the  United  States,  though  not 
otherwise  subject  to  these  articles; 

**(e)  All  persons  under  sentence  adjudged  by  courts-martial; 

"(f)  All  persons  admitted  into  the  Regular  Army  Soldiers' 
Home  at  Washington,  District  of  Columbia.  [M.C.M.,  pars. 
-4,  9-10, 13,  38,  7h  (i).] 

"II.  COURTS-MARTIAL 

"Art.    3.      Courts-martial    classified.  —  Courts-martial 
shall  be  of  three  kinds,  namely: 
"First,  general  courts-martial; 
"Second,  special  courts-martial;    and 
"Third,  summary  courts-martial.     [M.C.M.,  pars.  3,  5.] 

"a.  composition 

"Art.  4.  Who  may  serve  on  courts-martial.  —  All  offi- 
cers in  the  military  service  of  the  United  States,  and  officers  of 
the  Marine  Corps  when  detached  for  service  with  the  Army  by 
order  of  the  President,  shall  be  competent  to  serve  on  courts- 
martial  for  the  trial  of  any  persons  who  may  lawfully  be  brought 
before  such  courts  for  trial.    [M.C.M.,  pars.  6,  9-12.] 

"Art.  5.  General  courts-martial.  —  General  courts- 
martial  may  consist  of  any  number  of  officers  from  five  to  thir- 
teen, inclusive;  but  they  shall  not  consist  of  less  than  thirteen, 
when  that  number  can  be  convened  without  manifest  injury  to 
the  service.     [M.C.M.,  par.  7.] 

"Art.  6.  Special  courts-martial.  —  Special  courts-martial 
may  consist  of  any  number  of  officers  from  three  to  five,  in- 
clusive.    [M.C.M.,  par.  7.] 


6 


t( 


'Art.  7.     Summary  courts-martial.  —  A  summary  court- 
martial  shall  consist  of  one  officer.    [M.C.M.,  pars.  7,  9,  26,  27.] 


"b.  by  whom  appointed 


(( 


'Art.  8.  General  courts-martial.  —  The  President  of 
the  United  States,  the  commanding  officer  of  a  territorial  divi- 
sion or  department,  the  Superintendent  of  the  Military  Academy, 
the  commanding  officer  of  an  army,  an  army  corps,  a  divi- 
sion, or  a  separate  brigade,  and,  when  empowered  by  the  Presi- 
dent, the  commanding  officer  of  any  district  or  of  any  force  or 
body  of  troops  may  appoint  general  courts-martial;  but  when 
any  such  commander  is  the  accuser  or  the  prosecutor  of  the 
person  or  persons  to  be  tried,  the  court  shall  be  appointed  by 
superior  competent  authority,  and  no  officer  shall  be  eligible  to 
sit  as  a  member  of  such  court  when  he  is  the  accuser  or  a  wit- 
ness for  the  prosecution.  [M.C.M.y  para.  6,  1^-19,  62-6^,  129- 
131,  19U 

"Art.  9.  Special  courts-martial.  —  The  commanding  offi- 
cer of  a  district,  garrison,  fort,  camp,  or  other  place  where  troops 
are  on  duty,  and  the  commanding  officer  of  a  brigade,  regiment, 
detached  battaHon,  or  other  detached  command  may  appoint 
special  courts-martial;  but  when  any  such  commanding  officer 
is  the  accuser  or  the  prosecutor  of  the  person  or  persons  to  be 
tried,  the  court  shall  be  appointed  by  superior  authority,  and 
may  in  any  case  be  appointed  by  sup>erior  authority  when  by  the 
latter  deemed  desirable;  and  no  officer  shall  be  eligible  to  sit  as 
a  member  of  such  court  when  he  is  the  accuser  or  a  witness  for 
the  prosecution.  [M.C.M.,  pars.  6,  17,  21-2I^,  62-6^,  129-131, 
19J^.\ 

"Art.  10.  Summary  courts-martial.  —  The  command- 
ing officer  of  a  garrison,  fort,  camp,  or  other  place  where  troops 
are  on  duty,  and  the  commanding  officer  of  a  regiment,  detached 
battaHon,  detached  company,  or  other  detachment  may  ap- 


point  summary  courts-martial;  but  such  summary  courts- 
martial  may  in  any  case  be  appointed  by  superior  authority 
when  by  the  latter  deemed  desirable:  Provided,  That  when  but 
one  officer  is  present  with  a  command  he  shall  be  the  summary 
court-martial  of  that  command  and  shall  hear  and  determine 
cases  brought  before  him.     [M.C.M.,  pars.  6,  9,  25-29.] 

"Art.  11.  Appointment  of  judge  advocates.  —  For  each 
general  or  special  court-martial  the  authority  appK)inting  the 
court  shall  appoint  a  judge  advocate,  and  for  each  general  court- 
martial  one  or  more  assistant  judge  advocates  when  necessary. 
[M.C.M.,  pars.  30-31,  94,  106.] 


"C.   JURISDICTION 


"Art.  12.  General  courts-martial.  —  General  courts- 
martial  shall  have  power  to  try  any  person  subject  to  military 
law  for  any  crime  or  offense  made  punishable  by  these  articles 
and  any  other  person  who  by  the  law  of  war  is  subject  to  trial 
by  military  tribunals :  Provided,  That  no  officer  shall  be  brought 
to  trial  before  a  general  court-martial  appointed  by  the  Super- 
intendent of  the  Military  Academy.  [M.C.M.,  pars.  3,  13,  14, 
16,  38-40,  78,  173,  320.] 

"Art.  13.  Special  courts-martial.  —  Special  courts- 
martial  shall  have  power  to  try  any  person  subject  to  military 
law,  except  an  officer,  for  any  crime  or  offense  not  capital  made 
punishable  by  these  articles:  Provided,  That  the  President 
may,  by  regulations,  which  he  may  modify  from  time  to  time, 
except  from  the  jurisdiction  of  special  courts-martial  any  class 
or  classes  of  persons  subject  to  military  law. 

"Special  courts-martial  shall  not  have  power  to  adjudge  dis- 
honorable discharge,  nor  confinement  in  excess  of  six  months, 
nor  to  adjudge  forfeiture  of  more  than  six  months'  pay.  [M.C.M., 
pars.  41-42,  78,  173,  320.] 


8 

"Art.  14.  Summary  courts-martial.  —  Summary  courts- 
martial  shall  have  power  to  try  any  person  subject  to  military 
law,  except  an  officer,  a  cadet,  or  a  soldier  holding  the  privileges 
of  a  certificate  of  eligibility  to  promotion,  for  any  crime  or 
offense  not  capital  made  punishable  by  these  articles:  Provided, 
That  non-commissioned  officers  shall  not,  if  they  object  thereto, 
be  brought  to  trial  before  a  summary  court-martial  without  the 
authority  of  the  officer  competent  to  bring  them  to  trial  before  a 
general  court-martial:  Provided  further.  That  the  President 
may,  by  regulations,  which  he  may  modify  from  time  to  time, 
except  from  the  jurisdiction  of  summary  courts-martial  any 
class  or  classes  of  persons  subject  to  military  law. 

"Summary  courts-martial  shall  not  have  power  to  adjudge 
confinement  in  excess  of  three  months,  nor  to  adjudge  the  for- 
feiture of  more  than  three  months'  pay:  Provided,  That  when 
the  summary  court  officer  is  also  the  commanding  officer  no  sen- 
tence of  such  summary  court-martial  adjudging  confinement  at 
hard  labor  or  forfeiture  of  pay,  or  both,  for  a  period  in  excess  of 
one  month  shall  be  carried  into  execution  until  the  same  shall 
have  been  approved  by  superior  authority.  [M.C.M.,  pars.  JfS- 
U,  78, 173,  320,  483,  and  page  ^09.] 

"Art.  15.  Not  exclusive.  —  The  provisions  of  these  arti- 
cles conferring  jurisdiction  upon  courts-martial  shall  not  be 
construed  as  depriving  military  commissions,  provost  courts,  or 
other  military  tribunals  of  concurrent  jurisdiction  in  resj>ect  of 
offenders  or  offenses  that  by  the  law  of  war  may  be  lawfully 
triable  by  such  military  commissions,  provost  courts,  or  other 
military  tribunals.     [M.C.M.,  pars.  2-3,  J^5.] 

"Art.  16.  Officers:  how  triable.  —  Officers  shall  be 
triable  only  by  general  courts-martial,  and  in  no  case  shall  an 
officer,  when  it  can  be  avoided,  be  tried  by  officers  inferior  to 
him  in  rank.     [M.C.M.,  pars.  8,  12.] 


9 


**D.    PROCEDURE 


tt 


'Art.  17.  Judge  advocate  to  prosecute.  —  The  judge 
advocate  of  a  general  or  special  court-martial  shall  prosecute 
in  the  name  of  the  Unites  States,  and  shall,  under  the  direction 
of  the  court,  prepare  the  record  of  its  proceedings.  The  accused 
shall  have  the  right  to  be  represented  before  the  court  by  counsel 
of  his  own  selection  for  his  defense,  if  such  counsel  be  reasonably 
available,  but  should  he,  for  any  reason,  be  unrepresented  by 
counsel,  the  judge  advocate  shall  from  time  to  time  throughout 
the  proceedings  advise  the  accused  of  his  legal  rights.  [M.C.M., 
pars,  95-1  n,  123,  133,  and  pages  353-356.] 

"Art.  18.  Challenges.  —  Members  of  a  general  or  special 
court-martial  may  be  challenged  by  the  accused,  but  only  for 
cause  stated  to  the  court.  The  court  shall  determine  the  rele- 
vancy and  validity  thereof,  and  shall  not  receive  a  challenge  to 
more  than  one  member  at  a  time.  ■  [M.C.M.,  pars.  120-131, 137.] 

"Art.  19.  Oaths.  —  The  judge  advocate  of  a  general  or 
special  court-martial  shall  administer  to  the  members  of  the 
court,  before  they  proceed  upon  any  trial,  the  following  oath  or 
affirmation:  'You,  A.  B.,  do  swear  (or  affirm)  that  you  will  well 
and  truly  try  and  determine,  according  to  the  evidence,  the 
matter  now  before  you,  between  the  United  States  of  America 
and  the  person  to  be  tried,  and  that  you  will  duly  administer 
justice,  without  partiality,  favor,  or  affection,  according  to  the 
provisions  of  the  rules  and  articles  for  the  government  of  the 
armies  of  the  United  States,  and  if  any  doubt  should  arise,  not 
explained  by  said  articles,  then  according  to  your  conscience, 
the  best  of  your  understanding,  and  the  custom  of  war  in  like 
cases;  and  you  do  further  swear  (or  affirm)  that  you  will  not 
divulge  the  findings  or  sentence  of  the  court  until  they  shall 
be  published  by  the  proper  authority,  except  to  the  judge  advo- 
cate and  assistant  judge  advocate;   neither  will  you  disclose  or 


10 

discover  the  vote  or  opinion  of  any  particular  member  of  the 
court-martial,  unless  required  to  give  evidence  thereof  as  a 
witness  by  a  court  of  justice  in  due  course  of  law.  So  help  you 
God.' 

"When  the  oath  or  affirmation  has  been  administered  to 
the  members  of  a  general  or  special  court-martial,  the  president 
of  the  court  shall  administer  to  the  judge  advocate  and  to  each 
assistant  judge  advocate,  if  any,  an  oath  or  affirmation  in  the 
following  form:  *You,  A.  B.,  do  swear  (or  affirm)  that  you  will 
not  divulge  the  findings  or  sentence  of  the  court  to  any  but 
the  proper  authority  until  they  shall  be  duly  disclosed  by  the 
same.     So  help  you  God.' 

"All  persons  who  give  evidence  before  a  court-martial  shall 
be  examined  on  oath  or  affirmation  in  the  following  form :  '  You 
swear  (or  affirm)  that  the  evidence  you  shall  give  in  the  case 
now  in  hearing  shall  be  the  truth,  the  whole  truth,  and  nothing 
but  the  truth.     So  help  you  God.' 

"Every  rep>orter  of  the  proceedings  of  a  court-martial  shall, 
before  entering  upon  his  duties,  make  oath  or  affirmation  in  the 
following  form:  'You  swear  (or  affirm)  that  you  will  faithfully 
perform  the  duties  of  reporter  to  this  court.    So  help  you  God.' 

"Every  interpreter  in  the  trial  of  any  case  before  a  court- 
martial  shall,  before  entering  upon  his  duties,  make  oath  or 
affirmation  in  the  following  form:  'You  swear  (or  affirm)  that 
you  will  truly  interpret  in  the  case  now  in  hearing.  So  help 
you  God.' 

"In  case  of  affirmation  the  closing  sentence  of  adjuration 
will  be  omitted.    [M.C.M.,  pars.  91,  132-136.] 

"Art.  20.  Continuances.  —  A  court-martial  may,  for 
reasonable  cause,  grant  a  continuance  to  either  party  for  such 
time  and  as  often  as  may  appear  to  be  just.     [M.C.M.,  pars. 

139-1 U'] 

"Art.  21.     Refusal  to   plead.  —  When   the  accused,  ar- 


11 

raigned  before  a  court-martial,  from  obstinacy  and  deliberate 
design  stands  mute  or  answers  foreign  to  the  purpose,  the  court 
may  proceed  to  trial  and  judgment  as  if  he  had  pleaded  not 
guilty.    [M.C.M.,  pars.  lJi.4--14^,  155.] 

"Art.  22.  Process  to  obtain  witnesses.  —  Every  judge 
advocate  of  a  general  or  special  court-martial  and  every  sum- 
mary court-martial  shall  have  power  to  issue  the  like  process 
to  compel  witnesses  to  appear  and  testify  which  courts  of  the 
United  States,  having  criminal  jurisdiction,  may  lawfully  issue; 
but  such  process  shall  run  to  any  part  of  the  United  States,  its 
Territories,  and  possessions.  [M.C.M.,  pars.  159-169,  172,  and 
pages  383-390.] 

"Art.  23.  Refusal  to  appear  or  testify.  —  Every  person 
not  subject  to  mihtary  law  who,  being  duly  subpoenaed  to 
appear  as  a  witness  before  any  military  court,  commission,  court 
of  inquiry,  or  board,  or  before  any  officer,  military  or  civil, 
designated  to  take  a  deposition  to  be  read  in  evidence  before 
such  court,  commission,  court  of  inquiry,  or  board,  willfully 
neglects  or  refuses  to  appear,  or  refuses  to  qualify  as  a  witness, 
or  to  testify,  or  produce  documentary  evidence  which  such 
person  may  have  been  legally  subpoenaed  to  produce,  shall 
be  deemed  guilty  of  a  misdemeanor,  for  which  such  person 
shall  be  punished  on  information  in  the  district  court  of  the 
United  States  or  in  a  court  of  original  criminal  jurisdiction  in 
any  of  the  Territorial  possessions  of  the  United  States,  juris- 
diction being  hereby  conferred  upon  such  courts  for  such  pur- 
pose; and  it  shall  be  the  duty  of  the  United  States  district 
attorney  or  the  officer  prosecuting  for  the  Government  in  any 
such  court  of  original  criminal  jurisdiction,  on  the  certification 
of  the  facts  to  him  by  the  military  court,  commission,  court  of 
inquiry,  or  board,  to  file  an  information  against  and  prosecute 
the  person  so  offending,  and  the  punishment  of  such  person,  on 
conviction,  shall  be  a  fine  of  not  more  than  $500  or  imprison- 


12 

ment  not  to  exceed  six  months,  or  both,  at  the  discretion  of 
the  court:  Provided,  That  the  fees  of  such  witness  and  his 
mileage,  at  the  rates  allowed  to  witnesses  attending  the  courts 
of  the  United  States,  shall  be  duly  paid  or  tendered  said  witness, 
such  amounts  to  be  paid  out  of  the  appropriation  for  the  com- 
pensation of  witnesses.  [M.C.M.,  pars.  168,  170-172,  183-188, 
192,  232,  235,  and  pages  381-388.] 

"Akt.  24.  Compulsory  self-incrimination  prohibited. — 
No  witness  before  a  military  court,  commission,  court  of  inquiry, 
or  board,  or  before  any  officer,  military  or  civil,  designated  to 
take  a  deposition  to  be  read  in  evidence  before  a  mihtary  court, 
commission,  court  of  inquiry,  or  board,  shall  be  compelled  to 
incriminate  himself  or  to  answer  any  questions  which  may  tend 
to  incriminate  or  degrade  him.     [M.C.M.,  pars.  2U-215,  233- 

236.] 

"Art.  25.  Depositions  —  When  admissible.  —  A  duly 
authenticated  deposition  taken  upon  reasonable  notice  to  the 
opposite  party  may  be  read  in  evidence  before  any  military  court 
or  commission  in  any  case  not  capital,  or  in  any  proceeding 
before  a  court  of  inquiry  or  a  military  board,  if  such  deposition 
be  taken  when  the  witness  resides,  is  found,  or  is  about  to  go 
beyond  the  State,  Territory,  or  district  in  which  the  court, 
commission,  or  board  is  ordered  to  sit,  or  beyond  the  distance 
of  one  hundred  miles  from  the  place  of  trial  or  hearing,  or  when 
it  appears  to  the  satisfaction  of  the  court,  commission,  board, 
or  appointing  authority  that  tlie  witness,  by  reason  of  age, 
sickness,  bodily  infirmity,  imprisonment,  or  other  reasonable 
cause,  is  unable  to  appear  and  testify  in  person  at  the  place  of 
trial  or  hearing:  Provided,  That  testimony  by  deposition  may 
be  adduced  for  the  defense  in  capital  cases.  [M.C.M.,  pars, 
165,  167,  174,  263-269,  275,  and  pages  379-382.] 

"Art.  26.  Depositions  —  Before  whom  taken.  —  Depo- 
sitions to  be  read  in  evidence  before  military  courts,  commissions. 


13 

courts  of  inquiry,  or  military  boards,  or  for  other  use  in  military 
administration,  may  be  taken  before  and  authenticated  by  any 
oflBcer,  mihtary  or  civil,  authorized  by  the  laws  of  the  United 
States  or  by  the  laws  of  the  place  where  the  deposition  is  taken 
to  administer  oaths.    [M.C.M.,  pars.  175-182.] 

"Art.  27.  Courts  of  inquiry  —  Records  of,  when 
ADMISSIBLE.  —  The  record  of  the  proceedings  of  a  court  of 
inquiry  may  be  read  in  evidence  before  any  court-martial  or 
military  commission  in  any  case  not  capital  nor  extending  to 
the  dismissal  of  an  officer,  and  may  also  be  read  in  evidence  in 
any  proceeding  before  a  court  of  inquiry  or  a  military  board: 
Provided,  That  such  evidence  may  be  adduced  by  the  defense 
in  capital  cases  or  cases  extending  to  the  dismissal  of  an  officer. 
[M.C.M.,  pars,  m,  272,  Jf75.] 

"Art.  28.  Resignation  without  acceptance  does  not 
RELEASE  OFFICER.  —  Any  officer  who,  having  tendered  his 
resignation  and  prior  to  due  notice  of  the  acceptance  of  the 
same,  quits  his  post  or  proper  duties  without  leave  and  with 
intent  to  absent  himself  permanently  therefrom  shall  be  deemed 
a  deserter.     [M.C.M.,  pars.  281,  28^.] 

"Art.  29.  Enlistment  without  discharge.  —  Any  soldier 
who,  without  having  first  received  a  regular  discharge,  again 
enlists  in  the  Army,  or  in  the  militia  when  in  the  service  of  the 
United  States,  or  in  the  Navy  or  Marine  Corps  of  the  United 
States,  or  in  any  foreign  army,  shall  be  deemed  to  have  deserted 
the  service  of  the  United  States;  and,  where  the  enlistment  is 
in  one  of  the  forces  of  the  United  States  mentioned  above,  to 
have  fraudulently  enlisted  therein.  [J/.C.Jf.,  pars.  74  (n), 
284,  409.] 

"Art.  30.  Closed  sessions.  —  Whenever  a  general  or  special 
court-martial  shall  sit  in  closed  session,  the  judge  advocate 
and  the  assistant  judge  advocate,  if  any,  shall  withdraw;  and 
when  their  legal  advice  or  their  assistance  in  referring  to  the 


14 

recorded  evidence  is  required,  it  shall  be  obtained  in  open  court, 
and  in  the  presence  of  the  accused  and  of  his  counsel  if  there 
be  any.    [M.C.M.,  pars.  91-92, 101.] 

"Art.  31.  Order  of  voting.  —  Members  of  a  general  or 
special  court-martial,  in  giving  their  votes,  shall  begin  with  the 
junior  in  rank.    [M.C.M.,  pars.  90,  29J^,  308.] 

"Art.  32.  Contempts.  —  A  court-martial  may  punish  at 
discretion,  subject  to  the  limitations  contained  in  Article  four- 
teen, any  p>erson  who  uses  any  menacing  words,  signs,  or  ges- 
tures in  its  presence,  or  who  disturbs  its  proceedings  by  any 
riot  or  disorder.    [M.C.M.,  par.  173.] 

"Art.  33.  Records  —  General  courts-martial.  —  Each 
general  court-martial  shall  keep  a  separate  record  of  its  pro- 
ceedings in  the  trial  of  each  case  brought  before  it,  and  such 
record  shall  be  authenticated  by  the  signature  of  the  president 
and  the  judge  advocate;  but  in  case  the  record  can  not  be 
authenticated  by  the  judge  advocate,  by  reason  of  his  death, 
disability,  or  absence,  it  shall  be  signed  by  the  president  and  an 
assistant  judge  advocate,  if  any;  and  if  there  be  no  assistant 
judge  advocate,  or  in  case  of  his  death,  disability,  or  absence, 
then  by  the  president  and  one  other  member  of  the  court. 
[M.C.M.,  pars.  95,  107,  m  (d),  354-357,  400,  and  pages  357- 
364  and  375.] 

"Art.  34.  Records  —  Special  and  summary  courts- 
martial.  —  Each  special  court-martial  and  each  summary 
court-martial  shall  keep  a  record  of  its  proceedings,  separate  for 
each  case,  which  record  shall  contain  such  matter  and  be 
authenticated  in  such  manner  as  may  be  required  by  regu- 
lations which  the  President  may  from  time  to  time  prescribe. 
[M.C.M.,  pars.  154  (d),  358-363,  400,  and  pages  365-367  and 
376-377.] 

"Art.  35.  Disposition  of  records  —  General  courts- 
martial.  —  The  judge  advocate  of  each  general  court-martial 


15 

shall,  with  such  expedition  as  circumstances  may  permit, 
forward  to  the  appointing  authority  or  to  his  successor  in  com- 
mand the  original  record  of  the  proceedings  of  such  court  in  the 
trial  of  each  case.  All  records  of  such  proceedings  shall,  after 
having  been  finally  acted  upon,  be  transmitted  to  the  Judge 
Advocate  General  of  the  Army.    [M.C.M.,  pars.  366-368.] 

"Art.  36.  Disposition  of  records  —  Special  and  sum- 
mary COURTS-MARTIAL.  —  After  having  been  acted  upon  by  the 
oflBcer  appointing  the  court,  or  by  the  oflScer  commanding  for  * 
the  time  being,  the  record  of  each  trial  by  special  court-martial 
and  a  report  of  each  trial  by  summary  court-martial  shall  be 
transmitted  to  such  general  headquarters  as  the  President  may 
designate  in  regulations,  there  to  be  filed  in  the  office  of  the 
judge  advocate.  When  no  longer  of  use,  records  of  special 
and  summary  courts-martial  may  be  destroyed.  [M.C.M., 
pars.  366-368.] 

"Art.  37.  Irregularities  —  Effect  of.  —  The  proceed- 
ings of  a  court-martial  shall  not  be  held  invalid,  nor  the  findings 
or  sentence  disapproved,  in  any  case  on  the  ground  of  improper 
admission  or  rejection  of  evidence  or  for  any  error  as  to  any 
matter  of  pleading  or  procedure  unless  in  the  opinion  of  the 
reviewing  or  confirming  authority,  after  an  examination  of 
the  entire  proceedings,  it  shall  appear  that  the  error  complained 
of  has  injuriously  affected  the  substantial  rights  of  an  accused: 
Provided,  That  the  act  or  omission  upon  which  the  accused  has 
been  tried  constitutes  an  offense  denounced  and  made  punish- 
able by  one  or  more  of  these  articles :  Provided  further.  That 
the  omission  of  the  words  'hard  labor'  in  any  sentence  of  a 
court-martial  adjudging  imprisonment  or  confinement  shall 
not  be  construed  as  depriving  the  authorities  executing  such 
sentence  of  imprisonment  or  confinement  of  the  power  to 
require  hard  labor  as  a  part  of  the  punishment  in  any  case 
where  it  is  authorized  by  the  Executive  order  prescribing  maxi- 


16 

mum  punishments.     [M.C.M.,  pars.  3h  7Jf  (e),  101,  322,  352- 
353,  36J^-365.] 

"Art.  38.  President  may  prescribe  rules.  —  The  Presi- 
dent may  by  regulations,  which  he  may  modify  from  time  to 
time,  prescribe  the  procedure,  including  modes  of  proof,  in  cases 
before  courts-martial,  courts  of  inquiry,  military  commissions, 
and  other  military  tribunals:  Provided,  That  nothing  contrary 
to  or  inconsistent  with  these  articles  shall  be  so  prescribed: 
Provided  further.  That  all  rules  made  in  pursuance  of  this  article 
shall  be  laid  before  the  Congress  annually.  [M.C.M.,  pars. 
198-199.] 

"e.  limitations  upon  prosecutions 


(C 


'Art.  39.  As  to  time.  —  Except  for  desertion  committed  in 
time  of  war,  or  for  mutiny  or  murder,  no  person  subject  to  mili- 
tary law  shall  be  liable  to  be  tried  or  punished  by  a  court- 
martial  for  any  crime  or  offense  committed  more  than  two  years 
before  the  arraignment  of  such  person:  Provided,  That  for  de- 
sertion in  time  of  j>eace  or  for  any  crime  or  offense  punishable 
under  articles  ninety-three  and  ninety-four  of  this  code  the 
period  of  limitations  upon  trial  and  punishment  by  court- 
martial  shall  be  three  years :  Provided  further.  That  the  period 
of  any  absence  of  the  accused  from  the  jurisdiction  of  the 
United  States,  and  also  any  period  during  which  by  reason  of 
some  manifest  imp)ediment  the  accused  shall  not  have  been 
amenable  to  military  justice,  shall  be  excluded  in  computing 
the  aforesaid  periods  of  limitation:  And  provided  further.  That 
this  article  shall  not  have  the  effect  to  authorize  the  trial  or 
punishment  for  any  crime  or  offense  barred  by  the  provisions  of 
existing  law.    [M.C.M.,  pars.  1^9,  U51.] 

"Art.  40.     As  to  number.  —  No  person  shall  be  tried  a 
second  time  for  the  same  oflFense.    [M.C.M.,  par.  149.] 


17 


"f.  punishments 


*'Art.  41.  Certain  kinds  prohibited.  —  Punishment  by 
flogging,  or  by  branding,  marking,  or  tattooing  on  the  body  is 
prohibited.     [M.C.M.,  pars.  3^-3 Jf5.] 

"Art.  42.  Places  of  confinement  —  When  latvtul. — 
Except  for  desertion  in  time  of  war,  repeated  desertion  in  time 
of  peace,  and  mutiny,  no  i>erson  shall  under  the  sentence  of  a 
court-martial  be  punished  by  confinement  in  a  penitentiary 
unless  an  act  or  omission  of  which  he  is  con\'icted  is  recognized 
as  an  offense  of  a  civil  nature  by  some  statute  of  the  United 
States,  or  at  the  common  law  as  the  same  exists  in  the  District 
of  Columbia,  or  by  way  of  commutation  of  a  death  sentence, 
and  unless,  also,  the  period  of  confinement  authorized  and  ad- 
judged by  such  court-martial  is  one  year  or  more:  Provided, 
That  when  a  sentence  of  confinement  is  adjudged  by  a  court- 
martial  upon  con\'iction  of  two  or  more  acts  or  omissions  any 
one  of  which  is  punishable  under  these  articles  by  confinement 
in  a  penitentiary,  the  entire  sentence  of  confinement  may  be 
executed  in  a  penitentiary:  Provided  further ,  That  p>enitentiary 
confinement  hereby  authorized  may  be  served  in  any  i>eni- 
tentiary  directly  or  indirectly  under  the  jurisdiction  of  the 
United  States:  Provided  further.  That  persons  sentenced  to 
dishonorable  discharge  and  to  confinement  not  in  a  peniten- 
tiary, shall  be  confined  in  the  United  States  Disciplinary  Bar- 
racks or  elsewhere  as  the  Secretary  of  War  or  the  reviewing 
authority  may  direct,  but  not  in  a  penitentiary.  [M.C.M.,  pars. 
337-339,  341,  396-399.] 

"Art.  43.  Death  sentence  —  When  lawful.  —  No  per- 
son shall,  by  general  court-martial,  be  convicted  of  an  offense 
for  which  the  death  penalty  is  made  mandatory  by  law,  nor 
sentenced  to  suffer  death,  except  by  the  concurrence  of  two- 
thirds  of  the  members  of  said  court-martial  and  for  an  offense 


18 

in  these  articles  expressly  made  punishable  by  death.  All  other 
convictions  and  sentences,  whether  by  general  or  special  court- 
martial,  may  be  determined  by  a  majority  of  the  members 
present.    [M.C.M.,  pars.  40-^1,  90,  295,  308,  3^6,  378,  391.] 

"Art.  44.  Cowardice;  fraud  —  Accessory  penalty. — 
When  an  oflBcer  is  dismissed  from  the  service  for  cowardice  or 
fraud,  the  crime,  punishment,  name,  and  place  of  abode  of  the 
delinquent  shall  be  published  in  the  newspapers  in  and  about  the 
camp  and  in  the  State  from  which  the  offender  came  or  where 
he  usually  resides;  and  after  such  publication  it  shall  be  scan- 
dalous for  an  officer  to  associate  with  him.     [M.C.M.,  par.  344-] 

"Art.  45.  Maximum  limits.  —  Whenever  the  punishment 
for  a  crime  or  offense  made  punishable  by  these  articles  is  left 
to  the  discretion  of  the  court-martial,  the  punishment  shall  not, 
in  time  of  peace,  exceed  such  limit  or  limits  as  the  President 
may  from  time  to  time  prescribe.  [M.C.M.,  pars.  40,  42,  4-4> 
306-307,  309-328,  330-333,  340-349,  400,  and  pages  369-370 
and  375-377. 


"g.  action  by  appointing  or  superior  authority 


{< 


Art.  46.  Approval  and  execution  of  sentence.  —  No 
sentence  of  a  court-martial  shall  be  carried  into  execution  until 
the  same  shall  have  been  approved  by  the  officer  appointing  the 
court  or  by  the  officer  commanding  for  the  time  being.  [M.C.M., 
pars.  369-376  and  pages  371-373.] 

"Art.  47.  Powers  incident  to  power  to  approve.  —  The 
power  to  approve  the  sentence  of  a  court-martial  shall  be  held 
to  include: 

"(a)  The  power  to  approve  or  disapprove  a  finding  and  to 
approve  only  so  much  of  a  finding  of  guilty  of  a  particular 
offense  as  involves  a  finding  of  guilty  of  a  lesser  included  offense 
when,  in  the  opinion  of  the  authority  having  power  to  approve. 


19 

the  evidence  of  record  requires  a  finding  of  only  the  lesser  de- . 
gree  of  guilt;   and 

"  (b)  The  power  to  approve  or  disapprove  the  whole  or  any 
part  of  the  sentence.    [M.C.M.,  par.  377.] 

"Art.  48.  Confirmation  —  When  required.  —  In  ad- 
dition to  the  approval  required  by  Article  forty-six,  confirma- 
tion by  the  President  is  required  in  the  following  cases  before 
the  sentence  of  a  court-martial  is  carried  into  execution,  namely : 

"(a)  Any  sentence  respecting  a  general  officer: 

"(b)  Any  sentence  extending  to  the  dismissal  of  an  officer, 
except  that  in  time  of  war  a  sentence  extending  to  the  dismissal 
of  an  officer  below  the  grade  of  brigadier  general  may  be  car- 
ried into  execution  upon  confirmation  by  the  commanding  gen- 
eral of  the  Army  in  the  field  or  by  the  commanding  general  of 
the  territorial  department  or  division; 

"(c)  Any  sentence  extending  to  the  suspension  or  dismissal 
of  a  cadet;  and 

"(d)  Any  sentence  of  death,  except  in  the  cases  of  persons 
convicted  in  time  of  war  of  murder,  rape,  mutiny,  desertion, 
or  as  spies;  and  in  such  excepted  cases  a  sentence  of  death 
may  be  carried  into  execution  upon  confirmation  by  the  com- 
manding general  of  the  Army  in  the  field  or  by  the  commanding 
general  of  the  territorial  department  or  division. 

"When  the  authority  competent  to  confirm  the  sentence  has 
already  acted  as  the  approving  authority  no  additional  con- 
firmation by  him  is  necessary.     [M.C.M.,  par.  378.] 

"Art.  49.  Powers  incident  to  power  to  confirm. — 
The  power  to  confirm  the  sentence  of  a  court-martial  shall  be 
held  to  include: 

"  (a)  The  power  to  confirm  or  disapprove  a  finding,  and  to 
confirm  so  much  only  of  a  finding  of  guilty  of  a  particular  of- 
fense as  involves  a  fijiding  of  guilty  of  a  lesser  included  offense 
when,  in  the  opinion  of  the  authority  having  power  to  con- 


20 

firm,  the  evidence  of  record  requires  a  finding  of  only  the  lesser 
degree  of  guilt;    and 

"  (b)  The  power  to  confirm  or  disapprove  the  whole  or  any 
part  of  the  sentence.     [M.C.M.,  pars.  377,  379,  386,  388.] 

"Art.  50.  Mitigation  or  remission  of  sentences.  —  The 
power  to  order  the  execution  of  the  sentence  adjudged  by  a 
court-martial  shall  be  held  to  include,  inter  alia,  the  power  to 
mitigate  or  remit  the  whole  or  any  part  of  the  sentence,  but  no 
sentence  of  dismissal  of  an  officer  and  no  sentence  of  death  shall 
be  mitigated  or  remitted  by  any  authority  inferior  to  the 
President. 

"Any  unexecuted  portion  of  a  sentence  adjudged  by  a  court- 
martial  may  be  mitigated  or  remitted  by  the  military  authority 
competent  to  appoint,  for  the  command,  exclusive  of  peniten- 
tiaries and  the  United  States  Disciplinary  Barracks,  in  which 
the  person  under  sentence  is  held,  a  court  of  the  kind  that  im- 
posed the  sentence,  and  the  same  power  may  be  exercised  by 
superior  military  authority;  but  no  sentence  extending  to  the 
dismissal  of  an  officer  or  loss  of  files,  no  sentence  of  death,  and 
no  sentence  approved  or  confirmed  by  the  President  shall  be 
remitted  or  mitigated  by  any  other  authority. 

"The  power  of  remission  and  mitigation  shall  extend  to  all 
uncollected  forfeitures  adjudged  by  sentence  of  a  court-mar- 
tial.   [M.C.M.,  pars.  380-385,  390,  m-W3.] 

"Art  51.  Suspension  of  sentences  of  dismissal  or 
DEATH.  —  The  authority  competent  to  order  the  execution  of  a 
sentence  of  dismissal  of  an  officer  or  a  sentence  of  death  may  sus- 
pend such  sentence  until  the  pleasure  of  the  President  be  known, 
and  in  case  of  such  suspension  a  copy  of  the  order  of  suspen- 
sion, together  with  a  copy  of  the  record  of  trial,  shall  imme- 
diately be  transmitted  to  the  President.     [M.C.M.,  par.  391.] 

"Art.  52.  Suspension  of  sentence  of  dishonorable 
DISCHARGE.  —  The  authority  competent  to  order  the  execution 


21 

of  a  sentence,  including  dishonorable  discharge,  may  suspyend 
the  execution  of  the  dishonorable  discharge  until  the  soldier's 
release  from  confinement;  but  the  order  of  suspension  may  be 
vacated  at  any  time  and  the  execution  of  the  dishonorable 
discharge  directed  by  the  officer  having  general  court-martial 
jurisdiction  over  the  command,  exclusive  of  penitentiaries  and 
the  United  States  Disciplinary  Barracks,  in  which  the  soldier  is 
held  or  by  the  Secretary  of  War.    [M.C.M.,  par.  393.] 

"Art.  53.  Suspension  of  sentences  of  forfeiture  or 
CONFINEMENT.  —  The  authority  competent  to  order  the  exe- 
cution of  a  sentence  adjudged  by  a  court-martial  may,  if  the 
sentence  involve  neither  dismissal  nor  dishonorable  discharge, 
suspend  the  execution  of  the  sentence  in  so  far  as  it  relates  to  the 
forfeiture  of  pay  or  to  confinement,  or  to  both;  and  the  p>erson 
under  sentence  may  be  restored  to  duty  during  the  suspension  of 
confinement.  At  any  time  within  one  year  after  the  date  of  the 
order  of  suspension  such  order  may,  for  sufficient  cause,  be  va- 
cated and  the  execution  of  the  sentence  directed  by  the  mihtary 
authority  comp)etent  to  order  the  execution  of  like  sentences  in 
the  command,  exclusive  of  |>enitentiaries  and  the  United  States 
Disciplinary  Barracks,  to  which  the  person  under  sentence  be- 
longs or  in  which  he  may  be  found;  but  if  the  order  of  suspen- 
sion be  not  vacated  within  one  year  after  the  date  thereof  the 
susj)ended  sentence  shall  be  held  to  have  been  remitted.  [M.C.M.^ 
par.  392  and  page  373.] 

"III.  PUNITIVE  ARTICLES 

**A.  enlistment;   muster;   returns 

"Art.  54.  Fraudulent  enlistment.  —  Any  person  who 
shall  procure  himself  to  be  enlisted  in  the  military  service  of 
the  United  States  by  means  of  willful  misrepresentation  or  con- 


22 

cealment  as  to  his  qualifications  for  enlistment,  and  shall  re- 
ceive pay  or  allowances  under  such  enlistment,  shall  be  punished 
as  a  court-martial  may  direct.  [M.C.M.,  pars.  60,  74  (w),  1^9, 
281,  405,  and  pages  335-337,  and  393-396.] 

"Art.  55.  Officer  making  unlawful  enlistment.  — 
Any  officer  who  knowingly  enlists  or  musters  into  the  military 
service  any  person  whose  enlistment  or  muster  in  is  prohibited 
by  law,  regulations,  or  orders  shall  be  dismissed  from  the  serv- 
ice or  suffer  such  other  punishment  as  a  court-martial  may 
direct.  [M.C.M.,  pars.  281,  312,  320,  378,  407,  and  page 
337.] 

"Art.  5Q.  Muster  rolls  —  False  muster.  —  At  every 
muster  of  a  regiment,  troop,  batter3%  or  company  the  command- 
ing officer  thereof  shall  give  to  the  mustering  officer  certificates, 
signed  by  himself,  stating  how  long  absent  officers  have  been 
absent  and  the  reasons  of  their  absence.  And  the  command- 
ing officer  of  every  troop,  battery,  or  company  shall  give  like 
certificates,  stating  how  long  absent  non-commissioned  officers 
and  private  soldiers  have  been  absent  and  the  reasons  of  their 
absence.  Such  reasons  and  time  of  absence  shall  be  inserted  in 
the  muster  rolls  opposite  the  names  of  the  respective  absent 
officers  and  soldiers,  and  the  certificates,  together  with  the  mus- 
ter rolls,  shall  be  transmitted  by  the  mustering  officer  to  the 
Department  of  War  as  speedily  as  the  distance  of  the  place  and 
muster  will  admit.  Any  officer  who  knowingly  makes  a  false 
muster  of  man  or  animal,  or  who  signs  or  directs  or  allows  the 
signing  of  any  muster  roll  knowing  the  same  to  contain  a  false 
muster  or  false  statement  as  to  the  absence  or  pay  of  an  officer 
or  soldier,  or  who  wrongfully  takes  money  or  other  considera- 
tion on  mustering  in  a  regiment,  company,  or  other  organiza- 
tion, or  on  signing  muster  rolls,  or  who  knowingly  musters  as 
an  officer  or  soldier  a  person  who  is  not  such  officer  or  soldier, 
shall  be  dismissed  from   the  service  and  suffer  such  other  pun- 


S3 

ishment  as   a   court-martial  may  direct.     [M.C.M.,  pars.  281, 
320,  378,  Jt07,  and  page  337.] 

"Art.  57.  False  returns  —  Omission  to  render  re- 
turns. —  Every  officer  commanding  a  regiment,  an  indepen- 
dent troop,  battery,  or  company,  or  a  garrison,  shall,  in  the 
beginning  of  every  month,  transmit  through  the  proper  chan- 
nels, to  the  Department  of  War,  an  exact  return  of  the  same, 
specifying  the  names  of  the  officers  then  absent  from  their  posts, 
with  the  reasons  for  and  the  time  of  their  absence.  Every  offi- 
cer whose  duty  it  is  to  render  to  the  War  Department  or  other 
superior  authority  a  return  of  the  state  of  the  troops  under  his 
command,  or  of  the  arms,  ammunitions,  clothing,  funds,  or 
other  property  thereunto  belonging,  who  knowmgly  makes  a 
false  return  thereof  shall  be  dismissed  from  the  service  and 
suffer  such  other  punishment  as  a  court-martial  may  direct. 
And  any  officer  who,  through  neglect  or  design,  omits  to  render 
such  return  shall  be  punished  as  a  court-martial  may  direct. 
[M.C.M.,  pars.  281,  320,  378,  m,  and  page  338.] 

"  B.  desertion  —  absence  without  leave 

"Art.  58.  Desertion.  —  Any  person  subject  to  military  law 
who  deserts  or  attempts  to  desert  the  service  of  the  United  States 
shall,  if  the  offense  be  committed  in  time  of  war,  suffer  death  or 
such  other  punishment  as  a  court-martial  may  direct,  and,  if 
the  oflFense  be  committed  at  any  other  time,  any  punishment, 
excepting  death,  that  a  court-martial  may  direct.  [M.C.M., 
pars.  41,  60,  74-  (n),  U9,  281,  28^-286,  3^0,  378,  409,  and  pages 
336,  338,  378,  and  393-396.] 

"Art.  59.  Advising  or  aiding  another  to  desert.  —  Any 
person  subject  to  military  law  who  advises  or  persuades  or 
knowingly  assists  another  to  desert  the  service  of  the  United 
States  shall,  if  the  offense  be  committed  in  time  of  war,  suffer 


death,  or  such  other  punishment  as  a  court-martial  may  di- 
rect, and,  if  the  offense  be  committed  at  any  other  time,  any 
punishment,  excepting  death,  that  a  court-martial  may  direct. 
[M.C.M.,  pars.  U,  378,  UO,  and  page  338.] 

"Aht.  60.  Entertaining  a  deserter.  —  Any  officer  who, 
after  having  discovered  that  a  soldier  in  his  command  is  a 
deserter  from  the  military  or  naval  service  or  from  the  Marine 
Corps,  retains  such  deserter  in  his  command  without  informing 
superior  authority  or  the  commander  of  the  organization  to 
wliich  the  deserter  belongs,  shall  be  punished  as  a  court-martial 
may  direct.    [M.C.M.,  par.  411  and  page  339.] 

"Art.  61.  Absence  without  leave.  —  Any  person  subject 
to  military  law  who  fails  to  repair  at  the  fixed  time  to  the 
properly  appointed  place  of  duty,  or  goes  from  the  same  without 
proper  leave,  or  absents  himself  from  his  command,  guard, 
quarters,  station,  or  camp  without  proper  leave,  shall  be  punished 
as  a  court-martial  may  direct.  [M.C.M.,  pars.  66,  1J^9,  281, 
283-284,  412,  and  page  339.] 

*'c.   disrespect  —  insubordination  —  mutiny 

"Art.  62.  Disrespect  toward  the  President,  Vice 
President,  Congress,  Secretary  of  War,  governors, 
legislatures.  —  Any  officer  who  uses  contemptuous  or  dis- 
respectful words  against  the  President,  Vice  President,  the 
Congress  of  the  United  States,  the  Secretary  of  War,  or  the 
governor  or  legislature  of  any  State,  Territory,  or  other  posses- 
sion of  the  United  States  in  which  he  is  quartered  shall  be  dis- 
missed from  the  service  or  suffer  such  other  punishment  as  a 
court-martial  may  direct.  Any  other  person  subject  to  military 
law  who  so  offends  shall  be  punished  as  a  court-martial  may 
direct.    [M.C.M.,  pars.  312,  378,  U3,  and  page  339.] 

"Art.  63.     Disrespect  toward  superior  officer.  —  Any 


25 

person  subject  to  military  law  who  behaves  himself  wnth  dis- 
respect toward  his  superior  officer  shall  be  punished  as  a  court- 
martial  may  direct.     [M.C.M.,  par.  41Jf  and  page  339.] 

"Art.  64.  Assaulting  or  willfully  disobeying  superior 
OFFICER.  —  Any  person  subject  to  mihtary  law  who,  on  any 
pretense  whatsoever,  strikes  his  superior  officer  or  draws  or 
lifts  up  any  weapon  or  offers  any  violence  against  him,  being 
in  the  execution  of  liis  office,  or  willfully  disobej^s  any  lawful 
command  of  his  superior  officer,  shall  suffer  death  or  such  other 
punishment  as  a  court-martial  may  direct.  [M.C.M.,  pars. 
41,  7i  (d),  286,  378,  ^15,  and  page  339.] 

"Art.  65.  Insubordinate  conduct  toward  noncom- 
missioned OFFICER.  —  Any  soldier  who  strikes  or  assaults, 
or  who  attempts  or  threatens  to  strike  or  assault,  or  will- 
fully disobeys  the  lawful  order  of  a  noncommissioned  offi- 
cer while  in  the  execution  of  liis  office,  or  uses  threaten- 
ing or  insulting  language,  or  behaves  in  an  insubordinate 
or  disrespectful  manner  toward  a  noncommissioned  officer  while 
in  the  execution  of  his  office,  shall  be  punished  as  a  court- 
martial  may  direct.    [M.C.M.,  pars.  U6>  W  {IX),  and  pages 

339-3W-] 

"Art.  66.  Mutiny  or  sedition.  —  Any  person  subject  to 
military  law  who  attempts  to  create  or  who  begins,  excites, 
causes,  or  joins  in  any  mutiny  or  sedition  in  any  company,  party, 
post,  camp,  detachment,  guard,  or  other  command  shall  suffer 
death  or  such  other  punishment  as  a  court-martial  may  direct. 
[M.C.M.,  pars.  U,  378,  U7,  and  page  3JfO.] 

"Art.  67.  Failure  to  suppress  mutiny  or  sedition. — 
Any  officer  or  soldier  who,  being  present  at  any  mutiny  or 
sedition,  does  not  use  his  utmost  endeavor  to  suppress  the  same, 
or  knowing  or  having  reason  to  believe  that  a  mutiny  or  sedition 
is  to  take  place,  does  not  without  delay  give  information  thereof 
to   his   commanding   officer   shall   suffer   death   or   such   other 


26 

punishment  as  a  court-martial  may  direct.    [M.C.M.,  pars.  j^I, 
378,  418,  and  page  SJ^O.] 

"Art.  68.  Quarrels;  frays;  disorders.  —  All  ojQBcers 
and  noncommissioned  officers  have  power  to  part  and  quell  all 
quarrels,  frays,  and  disorders  among  persons  subject  to  military 
law  and  to  order  officers  who  take  part  in  the  same  into  arrest, 
and  other  persons  subject  to  military  law  who  take  part  in  the 
same  into  arrest  or  confinement,  as  circumstances  may  require, 
until  their  prof>er  superior  officer  is  acquainted  therewith.  And 
whosoever,  being  so  ordered,  refuses  to  obey  such  officer  or 
noncommissioned  officer  or  draws  a  weapon  upon  or  otherwise 
threatens  or  does  violence  to  him  shall  be  punished  as  a  court- 
martial  may  direct.    [M.C.M.,  pars.  Ifl^  52,  419,  and  page  3^0.] 

*'d.   arrest;  confinement. 

"Art.  69.  Arrest  or  confinement  of  accused  persons.  — 
An  officer  charged  with  crime  or  with  a  serious  oflFense  under 
these  articles  shall  be  placed  in  arrest  by  the  commanding 
officer,  and  in  exceptional  cases  an  officer  so  charged  may  be 
placed  in  confinement  by  the  same  authority.  A  soldier  charged 
with  crime  or  with  a  serious  offense  under  these  articles  shall  be 
placed  in  confinement,  and  when  charged  with  a  minor  offense 
he  may  be  placed  in  arrest.  Any  other  person  subject  to  military 
law  charged  with  crime  or  with  a  serious  offense  under  these 
articles  shall  be  placed  in  confinement  or  in  arrest,  as  circum- 
stances may  require;  and  when  charged  with  a  minor  offense 
such  person  may  be  placed  in  arrest.  Any  person  placed  in 
arrest  under  the  provisions  of  this  article  shall  thereby  be 
restricted  to  his  barracks,  quarters,  or  tent,  unless  such  limits 
shall  be  enlarged  by  proper  authority.  Any  officer  who  breaks 
his  arrest  or  who  escapes  from  confinement  before  he  is  set  at 
liberty  by  proper  authority  shall  be  dismissed  from  the  service 


27 

or  suffer  such  other  punishment  as  a  court-martial  may  direct; 
and  any  other  person  subject  to  miHtary  law  who  escapes  from 
confinement  or  who  breaks  his  arrest  before  he  is  set  at  liberty 
by  proper  authority  shall  be  punished  as  a  court-martial  may 
direct.    [M.C.M.,  pars.  Jf6-57,  378,  Ji.20,  and  page  3^0.] 

*'Akt.  70.  Investigation  of  and  action  upon  charges.  — 
No  person  put  in  arrest  shall  be  continued  in  confinement  more 
than  eight  days,  or  until  such  time  as  a  court-martial  can  be 
assembled.  When  any  person  is  put  in  arrest  for  the  purpose 
of  trial,  except  at  remote  military  posts  or  stations,  the  officer 
by  whose  order  he  is  arrested  shall  see  that  a  copy  of  the  charges 
on  which  he  is  to  be  tried  is  served  upon  him  within  eight  days 
after  his  arrest,  and  that  he  is  brought  to  trial  within  ten  days 
thereafter,  unless  the  necessities  of  the  service  prevent  such 
trial;  and  then  he  shall  be  brought  to  trial  within  thirty  days 
after  the  expiration  of  said  ten  days.  If  a  copy  of  the  charges 
be  not  served,  or  the  arrested  person  be  not  brought  to  trial,  as 
herein  required,  the  arrest  shall  cease.  But  persons  released 
from  arrest,  under  the  provisions  of  this -article,  may  be  tried, 
whenever  the  exigencies  of  the  service  shall  permit,  within 
twelve  months  after  such  release  from  arrest:  Provided,  That 
in  time  of  peace  no  person  shall,  against  his  objection,  be  brought 
to  trial  before  a  general  court-martial  within  a  period  of  five 
days  subsequent  to  the  service  of  charges  upon  him.  [M.C.M., 
pars,  5^,  77,  80.] 

"Akt.  71.  Refusal  to  receive  and  keep  prisoners.  — 
No  provost  marshal  or  commander  of  a  guard  shall  refuse  to 
receive  or  keep  any  prisoner  committed  to  his  charge  by  an  officer 
belonging  to  the  forces  of  the  United  States,  provided  the  officer 
committing  shall,  at  the  time,  deHver  an  account  in  writing, 
signed  by  himself,  of  the  crime  or  offense  charged  agamst  the 
prisoner.  Any  officer  or  soldier  so  refusing  shall  be  punished  as  a 
court-martial  may  direct.    [M.C.M.,  pars.  55,  J^21,  and  page  3Jf2.] 


28 

"Art.  72.  Report  of  prisoners  received.  —  Every  com- 
mander of  a  guard  to  whose  charge  a  prisoner  is  committed 
shall,  within  twenty-four  hours  after  such  confinement,  or  as 
soon  as  he  is  relieved  from  his  guard,  report  in  writing  to  the 
commanding  officer  the  name  of  such  prisoner,  the  offense 
charged  against  him,  and  the  name  of  the  officer  committing 
him;  and  if  he  fails  to  make  such  report  he  shall  be  punished 
as  a  court-martial  may  direct.    [M.C.M.,  pars.  55,  Jf22y  and  page 

"Art.  73.  Releasing  prisoner  without  proper  author- 
ity. —  Any  person  subject  to  military  law  who,  without  proper 
authority,  releases  any  prisoner  duly  committed  to  his  charge, 
or  who  through  neglect  or  design  suffers  any  prisoner  so  com- 
mitted to  escape,  shall  be  punished  as  a  court-martial  may 
direct.    [M.C.M.,  pars.  57,2IiS,  and  page  3^.] 

"Art.  74.  Delivery  of  offenders  to  civil  authorities. 
—  When  any  person  subject  to  mihtary  law,  except  one  who  is 
held  by  the  military  authorities  to  answer,  or  who  is  awaiting 
trial  or  result  of  trial,  or  who  is  undergoing  sentence  for  a  crime 
or  offense  punishable  under  these  articles,  is  accused  of  a  crime 
or  offense  committed  within  the  geographical  limits  of  the  States 
of  the  Union  and  the  District  of  Columbia,  and  punishable  by 
the  laws  of  the  land,  the  commanding  officer  is  required,  except 
in  time  of  war,  upon  application  duly  made,  to  use  his  utmost 
endeavor  to  deliver  over  such  accused  person  to  the  civil  authori- 
ties, or  to  aid  the  officers  of  justice  in  apprehending  and  securing 
him,  in  order  that  he  may  be  brought  to  trial.  Any  command- 
ing officer  who  upon  such  application  refuses  or  willfully  neglects, 
except  in  time  of  war,  to  deliver  over  such  accused  person  to 
the  civil  authorities  or  to  aid  the  officers  of  justice  in  apprehend- 
ing and  securing  him  shall  be  dismissed  from  the  service  or 
suffer  such  other  punishment  as  a  court-martial  may  direct. 

"  When,  under  the  provisions  of  this  article,  delivery  is  made 


29 

to  the  civil  authorities  of  an  offender  undergoing  sentence  of  a 
court-martial,  such  delivery,  if  followed  by  conviction,  shall 
be  held  to  interrupt  the  execution  of  the  sentence  of  the  court- 
martial,  and  the  offender  shall  be  returned  to  military  custody, 
after  having  answered  to  the  civil  authorities  for  his  offense, 
for  the  completion  of  the  said  court-martial  sentence.  [M.C.M., 
pars.  35,  281,  312,  378,  m,  ^2J^'] 

**E.     WAR   OFFENSES. 

"Art.  75.  Misbehavior  before  the  enemy.  —  Any  officer 
or  soldier  who  misbehaves  himself  before  the  enemy,  runs  away, 
or  shamefully  abandons  or  delivers  up  any  fort,  post,  camp, 
guard,  or  other  command  which  it  is  his  duty  to  defend,  or 
speaks  words  inducing  others  to  do  the  like,  or  casts  away  his 
arms  or  ammunition,  or  quits  his  post  or  colors  to  plunder  or 
pillage,  or  by  any  means  whatsoever  occasions  false  alarms  in 
camp,  garrison,  or  quarters,  shall  suffer  death  or  such  other 
punishment  as  a  court-martial  may  direct.  [M.C.M.,  pars.  4^1, 
3^7,  378,  Ji.25,  and  pages  3^-3^2.] 

"Art.  76.  Subordinates  compelling  commander  to  sur- 
render. —  If  any  commander  of  any  garrison,  fort,  post, 
camp,  guard,  or  other  command  is  compelled,  by  the  officers 
or  soldiers  under  his  command,  to  give  it  up  to  the  enemy  or 
to  abandon  it,  the  officers  or  soldiers  so  offendmg  shall  suffer 
death  or  such  other  punishment  as  a  court-martial  may  direct. 
[M.C.M.,  pars.  U,  378,  426,  and  page  3^2.] 

"Art.  77.  Lmproper  use  of  countersign.  —  Any  person 
subject  to  military  law  who  makes  knowTi  the  parole  or  counter- 
sign to  any  person  not  entitled  to  receive  it  according  to  the 
rules  and  disciphne  of  war,  or  gives  a  parole  or  countersign 
different  from  that  which  he  received,  shall,  if  the  offense  be 
committed  in  time  of  war,  suffer  death  or  such  other  punish- 


30 

ment  as  a  court-martial  may  direct.     [M.C.M.,  pars.  U,  378, 
J^27,  and  page  3Jt.2.] 

"Art.  78.  Forcing  a  safeguard.  —  Any  person  subject  to 
military  law  who,  in  time  of  war,  forces  a  safeguard  shall  suffer 
death  or  such  other  punishment  as  a  court-martial  may  direct. 
[M.C.M.,  pars,  ^i,  378,  m,  and  page  3^2.] 

"Art.  79.  Captured  property  to  be  secured  for  public 
SERVICE.  —  All  public  property  taken  from  the  enemy  is  the 
property  of  the  United  States  and  shall  be  secured  for  the 
service  of  the  United  States,  and  any  person  subject  to  military 
law  who  neglects  to  secure  such  property  or  is  guilty  of  wrongful 
appropriation  thereof  shall  be  punished  as  a  court-martial  may 
direct.    [M.C.M.,  pars.  J^29-J^30  and  pages  3^2-3JfS.] 

"Art.  80.  Dealing  in  captured  or  abandoned  property. 
—  Any  person  subject  to  military  law  who  buys,  sells,  trades, 
or  in  any  way  deals  in  or  disposes  of  captured  or  abandoned 
property,  whereby  he  shall  receive  or  expect  any  profit,  benefit, 
or  advantage  to  himself  or  to  any  other  person  directly  or 
indirectly  connected  with  himself,  or  who  fails  whenever  such 
property  comes  into  his  possession  or  custody  or  within  his 
control  to  give  notice  thereof  to  the  proper  authority  and 
to  turn  over  such  property  to  the  proper  authority  without 
delay,  shall,  on  conviction  thereof,  be  punished  by  fine  or 
imprisonment,  or  by  such  other  punishment  as  a  court-mar- 
tial, military  commission,  or  other  mihtary  tribunal  may  ad- 
judge, or  by  any  or  all  of  said  penalties.  [M.C.M.,  par.  Jt^O 
and  page  3JtS.] 

"Art.  81.  Relieving,  corresponding  with,  or  aiding 
the  enemy.  —  Whosoever  relieves  the  enemy  with  arms, 
ammunition,  supplies,  money,  or  other  thing,  or  knowingly 
harbors  or  protects  or  holds  correspondence  with  or  gives 
intelligence  to  the  enemy,  either  directly  or  indirectly,  shall 
suffer  death,  or  such  other  punishment  as  a  court-martial  or 


31 

military  commission  may  direct.     [M.C.M.,  pars.  4-1,  378,  431, 
and  page  343.] 

"Art.  82.  Spies.  —  Any  j>erson  who  in  time  of  war  shall  be 
found  lurking  or  acting  as  a  spy  in  or  about  any  of  the  fortifica- 
tions, posts,  quarters,  or  encampments  of  any  of  the  armies  of 
the  United  States,  or  elsewhere,  shall  be  tried  by  a  general 
court-martial  or  by  a  military  commission,  and  shall,  on  con- 
viction thereof,  suffer  death.  [M.C.M.,  pars.  13,  39-41,  308, 
378,  432,  and  pages  343-344-] 

"f.  miscellaneous  crimes  and  offenses 


(( 


Art.  83.  Military  property  —  Willful  or  negligent 
loss,  damage,  or  wrongful  disposition  of.  —  Any  person 
subject  to  military  law  who  willfully,  or  through  neglect,  suffers 
to  be  lost,  spoiled,  damaged,  or  wrongfully  disposed  of,  any 
military  proi>erty  belonging  to  the  United  States  shall  make 
good  the  loss  or  damage  and  suffer  such  punishment  as  a  court- 
martial  may  direct.    [M.C.M.,  pars.  281,  433,  and  page  344-] 

"Art.  84.  Waste  or  unlawful  disposition  of  military 
PROPERTY  ISSUED  TO  SOLDIERS.  —  Any  soldier  who  sells  or 
wrongfully  disposes  of  or  willfully  or  through  neglect  injures  or 
loses  any  horse,  arms,  ammunition,  accouterments,  equipment, 
clothing,  or  other  property  issued  for  use  in  the  military  service, 
shall  be  punished  as  a  court-martial  may  direct.  [M.C.M.,  pars. 
74  (c),  281,  299,  434,  and  page  344] 

"Art.  85.  Drunk  on  duty.  —  Any  oflScer  who  is  found  drunk 
on  duty  shall,  if  the  offense  be  committed  in  time  of  war,  be 
dismissed  from  the  service  and  suffer  such  other  punishment 
as  a  court-martial  may  direct;  and  if  the  offense  be  committed 
in  time  of  peace,  he  shall  be  punished  as  a  court-martial  may 
direct.  Any  person  subject  to  military  law,  except  an  officer, 
who  is  found  drunk  on  duty  shall  be  punished  as  a  court-mar- 


32 

tial  may  direct.    [M.C.M.,  pars.  W,  Tk  ip),  ^87,  30J^,  S78,  1^5, 
and  page  SIt-If] 

"Art.  86.  Misbehavior  of  sentinel.  —  Any  sentinel  who 
is  found  drunk  or  sleeping  upon  his  post,  or  who  leaves  it  before 
he  is  regularly  relieved,  shall,  if  the  offense  be  committed  in 
time  of  war,  suffer  death  or  such  other  punishment  as  a  court- 
martial  may  direct;  and  if  the  offense  be  committed  in  time  of 
peace,  he  shall  suffer  any  punishment,  except  death,  that  a  court- 
martial  may  direct.    [M.C.M.y  pars.  U,  281  y  378,  Jt36,  and  page 

3U-] 

"Art.  87.  Personal  interest  in  sale  of  provisions. — 
Any  officer  commanding  in  any  garrison,  fort,  barracks,  camp, 
or  other  place  where  troops  of  the  United  States  may  be  serv- 
ing who,  for  his  private  advantage,  lays  any  duty  or  imposi- 
tion upon  or  is  interested  in  the  sale  of  any  victuals  or  other  ne- 
cessaries of  hfe  brought  into  such  garrison,  fort,  barracks,  camp, 
or  other  place  for  the  use  of  the  troops,  shall  be  dismissed  from 
the  service  and  suffer  such  other  punishment  as  a  court-mar- 
tial may  direct.    [M.C.M.,  pars.  kO,  378,  J^37,  and  page  3U-] 

"Art.  88.  Intimidation  of  persons  bringing  provisions. 
—  Any  person  subject  to  military  law  who  abuses,  intimidates, 
does  violence  to,  or  wrongfully  interferes  with  any  person 
bringing  provisions,  supplies,  or  other  necessaries  to  the  camp, 
garrison,  or  quarters  of  the  forces  of  the  United  States  shall 
suffer  such  punishment  as  a  court-martial  may  direct.  [M.C.M., 
par.  1^38  and  pages  3^4--3J^5.] 

"Art.  89.  Good  order  to  be  maintained  and  wrongs 
redressed.  —  All  persons  subject  to  military  law  are  to  be- 
have themselves  orderly  in  quarters,  garrison,  camp,  and  on  the 
march;  and  any  person  subject  to  military  law  who  commits 
any  waste  or  spoil,  or  willfully  destroys  any  property  whatso- 
ever (unless  by  order  of  his  commanding  officer),  or  commits 
any  kind  of  depredation  or  riot  shall  be  punished  as  a  court- 


33 

martial  may  direct.  Any  commanding  officer  who,  upon  com- 
plaint made  to  him,  refuses  or  omits  to  see  reparation  made  to  the 
party  injured,  in  so  far  as  the  offender's  pay  shall  go  toward 
such  reparation,  as  provided  for  in  article  one  hundred  and  five, 
shall  be  dismissed  from  the  service,  or  otherwise  punished,  as 
a  court-martial  may  direct.     [M.C.M.,  pars.  4S9,  4^1,  and  page 

* '  Akt.  90.  Provoking  speeches  or  gestures.  —  No  per- 
son subject  to  military  law  shall  use  any  reproachful  or  pro- 
voking sj>eeches  or  gestures  to  another;  and  any  person  subject 
to  military  law  who  offends  against  the  provisions  of  this  arti- 
cle shall  be  punished  as  a  court-martial  may  direct.  [M.C.M., 
par.  Jf-ItO  and  page  34-5.] 

"Art.  91.  Dueling.  —  Any  person  subject  to  military  law 
who  fights  or  promotes  or  is  concerned  in  or  connives  at  fight- 
ing a  duel,  or  who  ha\'ing  knowledge  of  a  challenge  sent  or  about 
to  be  sent  fails  to  report  the  fact  promptly  to  the  proper  au- 
thority shall,  if  an  officer,  be  dismissed  from  the  service  or  suffer 
such  other  punishment  as  a  court-martial  may  direct;  and  if 
any  other  person  subject  to  mihtary  law,  shall  suffer  such  pun- 
ishment as  a  court-martial  may  direct.  [M.C.M.,  pars.  37 Sy 
44-1 ,  and  page  345.] 

"Art.  92.  Murder  —  Rape.  —  Any  person  subject  to 
military  law  who  commits  murder  or  rape  shall  suffer  death  or 
imprisonment  for  life,  as  a  court-martial  may  direct;  but  no 
person  shall  be  tried  by  court-martial  for  murder  or  rape  com- 
mitted within  the  geographical  limits  of  the  States  of  the  Union 
and  the  District  of  Columbia  in  time  of  peace.  [M.C.M., 
pars.  35,  40,  346,  378,  ^^^,  and  page  346.] 

"Art.  93.  Various  crimes.  —  Any  person  subject  to  mili- 
tary law  who  commits  manslaughter,  mayhem,  arson,  burglary, 
robbery,  larceny,  embezzlement,  perjury,  assault  with  intent  to 
commit  any  felony,  or  assault  with  intent  to  do  bodily  harm, 


34 

shall  be  punished  as  a  court-martial  may  direct.  [M.C.M.y 
pars.  35,  U9,  280,  285,  W,  and  page  3^6.] 

"Art.  94.  Frauds  against  the  Governisient.  —  Any  per- 
son subject  to  military  law  who  makes  or  causes  to  be  made 
any  claim  against  the  United  States,  or  any  officer  thereof, 
knowing  such  claim  to  be  false  or  fraudulent;  or 

"Who  presents  or  causes  to  be  presented  to  any  person  in  the 
civil  or  military  service  thereof,  for  approval  or  payment,  any 
claim  against  the  United  States,  or  any  officer  thereof,  knowing 
such  claim  to  be  false  or  fraudulent;  or 

"Who  enters  into  any  agreement  or  conspiracy  to  defraud 
the  United  States  by  obtaining,  or  aiding  others  to  obtain,  the 
allowance  or  payment  of  any  false  or  fraudulent  claim;  or 

"Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  ob- 
tain, the  approval,  allowance,  or  payment  of  any  claim  against 
the  United  States  or  against  any  officer  thereof,  makes  or  uses, 
or  procures,  or  advises  the  making  or  use  of,  any  writing  or  other 
paper,  knowing  the  same  to  contain  any  false  or  fraudulent 
statements;  or 

"  Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  obtain, 
the  approval,  allowance,  or  payment  of  any  claim  against  the 
United  States  or  any  officer  thereof,  makes,  or  procures,  or  ad- 
vises the  making  of,  any  oath  to  any  fact  or  to  any  writing  or 
other  paper  knowing  such  oath  to  be  false;  or 

"Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  obtain, 
the  approval,  allowance,  or  payment  of  any  claim  against  the 
United  States  or  any  officer  thereof,  forges  or  counterfeits,  or 
procures,  or  advises  the  forging  or  counterfeiting  of  any  signa- 
ture upon  any  writing  or  other  paper,  or  uses,  or  procures,  or 
advises  the  use  of  any  such  signature,  knowing  the  same  to  be 
forged  or  counterfeited;  or 

"Who,  having  charge,  possession,  custody,  or  control  of  any 
money  or  other  property  of  the  United  States,  furnished  or  in- 


35 

tended  for  the  military  service  thereof,  knowingly  delivers,  or 
causes  to  be  delivered,  to  any  person  having  authority  to  re- 
ceive the  same,  any  amount  thereof  less  than  that  for  which  he 
receives  a  certificate  or  receipt;  or 

"Who,  being  authorized  to  make  or  deliver  any  paper  certi- 
fying the  receipt  of  any  property  of  the  United  States  furnished 
or  intended  for  the  military  service  thereof,  makes  or  deHvers 
to  any  person  such  writing,  without  having  full  knowledge  of  the 
truth  of  the  statements  therein  contamed  and  with  intent  to 
defraud  the  United  States;  or 

"Who  steals,  embezzles,  knowingly  and  willingly  misappro- 
priates, applies  to  his  ow^n  use  or  benefit,  or  wrongfully  or 
knowingly  sells  or  disposes  of  any  ordnance,  arms,  equipments, 
ammunition,  clothing,  subsistence  stores,  money,  or  other 
property  of  the  United  States  furnished  or  mtended  for  the 
military  service  thereof;  or 

"  ^^^lO  knowingly  purchases  or  receives  in  pledge  for  any  obli- 
gation or  indebtedness  from  any  soldier,  officer,  or  other  person 
who  is  a  part  of  or  employed  in  said  forces  or  service,  any  ord- 
nance, arms,  equipment,  ammunition,  clothing,  subsistence 
stores,  or  other  property  of  the  United  States,  such  soldier,  offi- 
cer, or  other  person  not  havmg  law^ful  right  to  sell  or  pledge  the 

same; 

"Shall,  on  conviction  thereof,  be  punished  by  fine  or  imprison- 
ment, or  by  such  other  punishment  as  a  court-martial  may  ad- 
judge, or  by  any  or  all  of  said  penalties.  And  if  any  person, 
being  guilty  of  any  of  the  offenses  aforesaid  while  m  the  mihtary 
service  of  the  United  States,  receives  his  discharge  or  is  dis- 
missed from  the  service,  he  shall  continue  to  be  liable  to  be  ar- 
rested and  held  for  trial  and  sentence  by  a  court-martial  in  the 
same  manner  and  to  the  same  extent  as  if  he  had  not  received 
such  discharge  nor  been  dismissed.  [M.C.M.,  pars.  35,  38,  74  (o), 
U9,  28G,  3Jt7,  Uh  and  pages  3J^6-3J^8.] 


36 


C( 


'Art.  95.  Conduct  unbecoming  an  officer  and  gentle- 
man. —  Any  officer  or  cadet  who  is  convicted  of  conduct  un- 
becoming an  officer  and  a  gentleman  shall  be  dismissed  from  the 
service.  [M.C.M.,  pars.  W,  71,  308-309, 312,  378,  Uo,  and  pages 
3Jf8-3J^9.] 

"Art.  96.  General  article.  —  Though  not  mentioned  in 
these  articles,  all  disorders  and  neglects  to  the  prejudice  of  good 
order  and  military  discipline,  all  conduct  of  a  nature  to  bring  dis- 
credit upon  the  military  service,  and  all  crimes  or  offenses  not 
capital,  of  which  persons  subject  to  military  law  may  be  guilty, 
shall  be  taken  cognizance  of  by  a  general  or  special  or  summary 
court-martial,  according  to  the  nature  and  degree  of  the  offense, 
and  punished  at  the  discretion  of  such  court.  [M.C.M.,  pars. 
35,  71,  7J^  {e),  90, 173,  231,  235,  286,  29^,  U5,  ^20,  m*  U6,  W, 
and  pages  336  and  3^9-352.] 

"IV.  COURTS  OF  INQUIRY 

"Art.  97.  When  and  by  whom  ordered.  —  A  court  of  in- 
quiry to  examine  into  the  nature  of  any  transaction  of  or  accu- 
sation or  imputation  against  any  officer  or  soldier  may  be  ordered 
by  the  President  or  by  any  commanding  officer;  but  a  court  of 
inquiry  shall  not  be  ordered  by  any  commanding  officer  except 
upon  the  request  of  the  officer  or  soldier  whose  conduct  is  to  be 
inquired  into.     [M.C.M.,  pars.  13,  W-Ii.52.] 

"Art.  98.  Composition.  —  A  court  of  inquiry  shall  consist 
of  three  or  more  officers.  For  each  court  of  inquiry  the  author- 
ity appointing  the  court  shall  appoint  a  recorder.  [M.C.M., 
pars.  k53-k57,  J^65.] 

"Art.  99.  Challenges.  —  Members  of  a  court  of  inquiry 
may  be  challenged  by  the  party  whose  conduct  is  to  be  inquired 
into,  but  only  for  cause  stated  to  the  court.  The  court  shall  de- 
termine the  relevancy  and  validity  of  any  challenge,  and  shall 


37 

not  receive  a  challenge  to  more  than  one  member  at  a  time. 
The  party  whose  conduct  is  being  inquired  into  shall  have  the 
right  to  be  represented  before  the  court  by  counsel  of  his  own 
selection,  if  such  counsel  be  reasonably  available.  [M.C.M.y 
par.  464-.] 

"Art.  100.  Oath  of  members  and  recorder.  —  The  re- 
corder of  a  court  of  inquiry  shall  administer  to  the  members 
the  following  oath:  'You,  A.  B.,  do  swear  (or  affirm)  that  you 
will  well  and  truly  examine  and  inquire,  according  to  the  evi- 
dence, into  the  matter  now  before  you,  without  partiality,  favor, 
affection,  prejudice,  or  hope  of  reward.  So  help  you,  God.' 
After  which  the  president  of  the  court  shall  administer  to  the 
recorder  the  following  oath:  *You,  A.  B.,  do  swear  (or  affirm) 
that  you  will,  according  to  your  best  abilities,  accurately  and 
impartially  record  the  proceedings  of  the  court  and  the  evidence 
to  be  given  in  the  case  in  hearing.    So  help  you,  God.' 

"Li  case  of  affirmation  the  closing  sentence  of  adjuration  will 
be  omitted.    [M.C.M.,  par.  ^66.] 

"Art.  101.  Powers;  procedure.  —  A  court  of  inquiry,  and 
the  recorder  thereof  shall  have  the  same  power  to  summon  and 
examine  witnesses  as  is  given  to  courts-martial  and  the  judge 
advocate  thereof.  Such  witnesses  shall  take  the  same  oath  or 
affirmation  that  is  taken  by  witnesses  before  courts-martial.  A 
reporter  or  an  interpreter  for  a  court  of  inquiry  shall,  before 
entering  upon  his  duties,  take  the  oath  or  affirmation  required 
of  a  repK)rter  or  an  interpreter  for  a  court-martial.  The  party 
whose  conduct  is  being  inquired  into  or  his  counsel,  if  any, 
shall  be  f>ermitted  to  examine  and  cross-examine  witnesses  so  as 
fuUy  to  investigate  the  circumstances  in  question.  [M.C.M.y 
pars.  J^58-J^72.] 

"Art.  102.  Opinion  on  merits  of  case.  —  A  court  of  in- 
quiry shall  not  give  an  opinion  on  the  merits  of  the  case  inquired 
into  unless  specially  ordered  to  do  so.     [M.C.M.,  par.  Ji.69.] 


38 

"Art.  103.  Record  of  proceedings  —  How  authenti- 
cated. —  Each  court  of  inquiry  shall  keep  a  record  of  its  proceed- 
ings, which  shall  be  authenticated  by  the  signature  of  the  presi- 
dent and  the  recorder  thereof,  and  be  forwarded  to  the  conven- 
ing authority.  In  case  the  record  can  not  be  authenticated  by 
the  recorder,  by  reason  of  his  death,  disabihty,  or  absence,  it  shall 
be  signed  by  the  president  and  by  one  other  member  of  the 
court.     [M.C.M.,  pars.  272,  ^75-^75.] 

"V.  MISCELLANEOUS  PROVISIONS 

"Art.  104.  Disciplinary  powers  of  commanding  offi- 
cers. —  Under  such  regulations  as  the  President  may  pre- 
scribe, and  which  he  may  from  time  to  time  revoke,  alter,  or  add 
to,  the  commanding  officer  of  any  detachment,  company,  or 
higher  command  may,  for  minor  ofiFenses  not  denied  by  the  ac- 
cused, impose  disciplinary  punishments  upon  persons  of  his 
command  without  the  intervention  of  a  court-martial,  unless 
the  accused  demands  trial  by  court-martial. 

"The  disciplinary  punishments  authorized  by  this  article 
may  include  admonition,  reprimand,  withholding  of  privileges, 
extra  fatigue,  and  restriction  to  certain  specified  limits,  but 
shall  not  include  forfeiture  of  pay  or  confinement  under  guard. 
A  person  punished  under  authority  of  this  article,  who  deems 
his  punishment  unjust  or  disproportionate  to  the  offense,  may, 
through  the  proper  channel,  appeal  to  the  next  superior  author- 
ity, but  may  in  the  meantime  be  required  to  undergo  the  pun- 
ishment adjudged.  The  commanding  officer  who  imposes  the 
punishment,  his  successor  in  command,  and  superior  authority 
shall  have  power  to  mitigate  or  remit  any  unexecuted  portion 
of  the  punishment.  The  imposition  and  enforcement  of  disci- 
plinary punishment  under  authority  of  this  article  for  any  act  or 
omission  shall  not  be  a  bar  to  trial  by  court-martial  for  a  crime 


39 

or  offense  growing  out  of  the  same  act  or  omission;  but  the  fact 
that  a  discipHnary  punishment  has  been  enforced  may  be  shown 
by  the  accused  upon  trial,  and  when  so  shown  shall  be  consid- 
ered in  determining  the  measure  of  punishment  to  be  adjudged 
in  the  event  of  a  findmg  of  guilty.  [M.C.M..  pars.  320,  333-336.] 
"Art.  105.  Injuries  to  person  or  property  —  Redress 
QY.  —  Whenever  complaint  is  made  to  any  commanding  officer 
that  damage  has  been  done  to  the  property  of  any  person  or  that 
his  property  has  been  wrongfully  taken  by  persons  subject  to 
military  law,  such  complaint  shall  be  investigated  by  a  board 
consisting  of  any  number  of  officers  from  one  to  three,  which 
board  shall  be  convened  by  the  commanding  officer  and  shall 
have,  for  the  purpose  of  such  investigation,  power  to  summon 
witnesses  and  examine  them  upon  oath  or  affirmation,  to  receive 
depositions  or  other  documentary  evidence,  and  to  assess  the 
damages  sustained  against  the  responsible  parties.  The  assess- 
ment of  damages  made  by  such  board  shall  be  subject  to  the 
approval  of  the  commanding  officer,  and  in  the  amount  ap- 
proved by  him  shall  be  stopped  against  the  pay  of  the  offenders. 
And  the  order  of  such  commanding  officer  directing  stoppages 
herein  authorized  shall  be  conclusive  on  any  disbursing  officer 
for  the  payment  by  him  to  the  injured  parties  of  the  stoppages 

so  ordered. 

"Where  the  offenders  can  not  be  ascertained,  but  the  organiza- 
tion or  detachment  to  which  they  belong  is  known,  stoppages 
to  the  amount  of  damages  inflicted  may  be  made  and  assessed 
in  such  proportion  as  may  be  deemed  just  upon  the  individual 
members  thereof  who  are  showTi  to  have  been  present  with  such 
organization  or  detachment  at  the  time  the  damages  complained 
of  were  inflicted  as  determined  by  the  approved  findmgs  of  the 
board.    [M.C.M.,  par.  ^i.] 

Art.  106.  Arrest  of  deserters  by  civil  officials.  —  It 
shall  be  lawful  for  any  civil  officer  having  authority  under  the 


40 

laws  of  the  United  States,  or  of  any  State,  Territory,  District, 
or  possession  of  the  United  States,  to  arrest  offenders,  sum- 
marily to  arrest  a  deserter  from  the  military  service  of  the 
United  States  and  deliver  him  into  the  custody  of  the  military 
authorities  of  the  United  States.    [M.C.M.,  pars.  58-59.] 

"Art.  107.  Soldiers  to  make  good  time  lost.  —  Every 
soldier  who  in  an  existing  or  subsequent  enlistment  deserts  the 
service  of  the  United  States  or  without  proper  authority  absents 
himself  from  his  organization,  station,  or  duty  for  more  than  one 
day,  or  who  is  confined  for  more  than  one  day  under  sentence, 
or  while  awaiting  trial  and  disposition  of  his  case,  if  the  trial 
results  in  conviction,  or  through  the  intemperate  use  of  drugs 
or  alcoholic  liquor,  or  through  disease  or  injury  the  result  of 
his  own  misconduct,  renders  himself  unable  for  more  than  one 
day  to  perform  duty,  shall  be  liable  to  serve,  after  his  return  to 
a  full-duty  status,  for  such  period  as  shall,  with  the  time  he 
may  have  served  prior  to  such  desertion,  unauthorized  absence, 
confinement,  or  inability  to  perform  duty,  amount  to  the  full 
term  of  that  part  of  his  enlistment  period  which  he  is  required 
to  serve  with  his  organization  before  being  furloughed  to  the 
Army  reserve.     [M.C.M.,  pars.  38,  3^0.] 

"Art.  108.  Soldiers  —  Separation  from  the  service. — 
No  enlisted  man,  lawfully  inducted  into  the  military  service  of 
the  United  States,  shall  be  discharged  from  said  service  without 
a  certificate  of  discharge,  signed  by  a  field  officer  of  the  regiment 
or  other  organization  to  which  the  enlisted  man  belongs  or  by 
the  commanding  officer  when  no  such  field  officer  is  present; 
and  no  enlisted  man  shall  be  discharged  from  said  service 
before  his  term  of  service  has  expired,  except  by  order  of  the 
President,  the  Secretary  of  War,  the  commanding  officer  of  a 
department,  or  by  sentence.of  a  general  court-martial.  [M.C.M., 
pars,  m,  U,  320,  382,  392-393,  403.] 

"Art.  109.     Oath   of   enlistment.  —  At   the   time   of   his 


41 

enlistment  every  soldier  shall  take  the  following  oath  or  affirma- 
tion :   *  I, ,"do  solemnly  swear  (or  affirm)  that  I  will  bear 

true  faith  and  allegiance  to  the  United  States  of  America;  that 
I  will  serve  them  honestly  and  faithfully  against  all  their  enemies 
whomsoever;  and  that  I  will  obey  the  orders  of  the  President 
of  the  United  States  and  the  orders  of  the  officers  appointed 
over  me,  according  to  the  Rules  and  Articles  of  War.'  This 
oath  or  affirmation  may  be  taken  before  any  officer.  [M.C.M.y 
par.  282.] 

"Art.  110.  Certain  articles  to  be  read  and  explained. 
—  Articles  one,  two,  and  twenty -nine,  fifty-four  to  ninety-six, 
inclusive,  and  one  hundred  and  four  to  one  hundred  and  nine, 
inclusive,  shall  be  read  and  explained  to  every  soldier  at  the 
time  of  his  enlistment  or  muster  in,  or  within  six  days  thereafter, 
and  shall  be  read  and  explained  once  every  six  months  to  the 
soldiers  of  every  garrison,  regiment,  or  company  in  the  service 
of  the  United  States.    {M.C.M.,  far.  282.] 

"Art.  111.  Copy  of  record  of  trial.  —  Every  person 
tried  by  a  general  court-martial  shall,  on  demand  therefor, 
made  by  himself  or  by  any  person  in  his  behalf,  be  entitled  to 
a  copy  of  the  record  of  the  trial.    [M.C.M.,  pars.  117,  351^-357.] 

"Art.  112.  Effects  of  deceased  persons  —  Disposition 
OF.  —  In  case  of  the  death  of  any  person  subject  to  military 
law,  the  commanding  officer  of  the  place  or  command  will 
permit  the  legal  representative  or  widow  of  the  deceased,  if 
present,  to  take  possession  of  all  his  effects  then  in  camp  or 
quarters,  and  if  no  legal  representative  or  widow  be  present,  the 
commanding  officer  shall  direct  a  summary  court  to  secure  all 
such  effects;  and  said  summary  court  shall  have  authority 
to  convert  such  effects  into  cash,  by  public  or  private  sale,  not 
earher  than  thirty  days  after  the  death  of  the  deceased,  and  to 
collect  and  receive  any  debts  due  decedent's  estate  by  local 
debtors;     and   as,  soon   as   practicable   after   converting   such 


42 

effects  into  cash  said  summary  court  shall  deposit  with  the 
proper  officer,  to  be  designated  in  regulations,  any  cash  belong- 
ing to  decedent's  estate,  and  shall  transmit  a  receipt  for  such 
deposit,  accompanied  by  any  will  or  other  papers  of  value  belong- 
ing to  the  deceased,  an  inventory  of  the  effects  secured  by  said 
summary  court,  and  a  full  account  of  his  transactions  to  the 
War  Department  for  transmission  to  the  Auditor  for  the  War 
Department  for  action  as  authorized  by  law  in  the  settlement 
of  the  accounts  of  deceased  officers  or  enlisted  men  of  the  Army; 
but  if  in  the  meantime  the  legal  representative,  or  widow,  shall 
present  himself  or  herself  to  take  possession  of  decedent's  estate 
the  said  summary  court  shall  turn  over  to  him  or  her  all  effects 
not  sold  and  cash  belonging  to  said  estate,  together  with  an 
inventory  and  account,  and  make  to  the  War  Department  a 
fuU  report  of  his  transactions. 

*'The  provisions  of  this  article  shall  be  applicable  to  inmates 
of  the  United  States  Soldiers'  Home  who  die  in  any  United 
States  military  hospital  outside  of  the  District  of  Columbia 
where  sent  from  the  home  for  treatment.    [M.C.M.,  par.  4-82.] 

"Art.  113.  Inquests.  —  When  at  any  post,  fort,  camp,  or 
other  place  garrisoned  by  the  military  forces  of  the  United 
States  and  under  the  exclusive  jurisdiction  of  the  United  States, 
any  person  shall  have  been  found  dead  under  circumstances 
which  appear  to  require  investigation,  the  commanding  officer 
will  designate  and  direct  a  summary  court-martial  to  investigate 
the  circumstances  attending  the  death;  and,  for  this  purpose, 
such  summary  court-martial  shall  have  power  to  summon 
witnesses  and  examine  them  upon  oath  or  affirmation.  He  shall 
promptly  transmit  to  the  post  or  other  commander  a  report 
of  his  investigation  and  of  his  findings  as  to  the  cause  of  the 
death.     [M.C.M.,  par.  4^83  and  page  409.] 

"Art.  114.  Authority  to  administer  oaths.  —  Any  judge 
advocate  or  acting  judge  advocate,  the  president  of  a  general 


[S 


or  special  court-martial,  any  summary  court-martial,  the  judge 
advocate  or  any  assistant  judge  advocate  of  a  general  or  special 
court-martial,  the  president  or  the  recorder  of  a  court  of  inquiry 
or  of  a  military  board,  any  officer  designated  to  take  a  depo- 
sition, any  officer  detailed  to  conduct  an  investigation,  and  the 
adjutant  of  any  command  shall  have  power  to  administer  oaths 
for  the  purposes  of  the  administration  of  military  justice  and 
for  other  purposes  of  military  administration;  and  in  foreign 
places  where  the  Army  may  be  serving  shall  have  the  general 
powers  of  a  notary  public  or  of  a  consul  of  the  United  States 
in  the  administration  of  oaths,  the  execution  and  acknowledg- 
ment of  legal  instruments,  the  attestation  of  documents,  and 
all  other  forms  of  notarial  acts  to  be  executed  by  persons  sub- 
ject to  miUtary  law.    [M.C.M.,  par.  138.] 

"Art.  115.  Appointment  of  reporters  and  interpret- 
ers. —  Under  such  regulations  as  the  Secretary  of  War  may  from 
time  to  time  prescribe,  the  president  of  a  court-martial  or 
military  commission,  or  a  court  of  inquiry  shall  have  power  to 
appoint  a  reporter,  who  shall  record  the  proceedings  of  and 
testimony  taken  before  such  court  or  commission  and  may  set 
down  the  same,  in  the  first  instance,  in  shorthand.  Under  like 
regulations  the  president  of  a  court-martial  or  military  com- 
mission, or  court  of  inquiry,  or  a  summary  court,  may  appoint 
an  interpreter,  who  shall  interpret  for  the  court  or  commission. 
[M.C.M.,  pars.  112-119,  135-136,  457.] 

"Art.  lie.  Powers  of  assistant  judge  advocates.  — An 
assistant  judge  advocate  of  a  general  court-martial  shall  be 
competent  to  perform  any  duty  devolved  by  law,  regulation,  or 
the  custom  of  the  service  upon  the  judge  advocate  of  the  court. 
[M.C.M.,  pars.  106-107.] 

"Art.  117.  Removal  of  civil  suits.  —  When  any  civil 
suit  or  criminal  prosecution  is  commenced  in  any  court  of  a 
State  against  any  officer,  soldier,  or  other  person  in  the  military 


44 

service  of  the  United  States  on  account  of  any  act  done  under 
color  of  his  office  or  status,  or  in  respect  to  which  he  claims  any 
right,  title,  or  authority  under  any  law  of  the  United  States 
respecting  the  military  forces  thereof,  or  under  the  law  of  war, 
such  suit  or  prosecution  may  at  any  time  before  the  trial  or 
final  hearing  thereof  be  removed  for  trial  into  the  district  court 
of  the  United  States  in  the  district  where  the  same  is  pending 
in  the  manner  prescribed  in  section  thirty-three  of  the  Act 
entitled  'An  Act  to  codify,  revise,  and  amend  the  laws  relating 
to  the  judiciary,'  approved  March  third,  nineteen  hundred  and 
eleven,  and  the  cause  shall  thereupon  be  entered  on  the  docket 
of  said  district  court  and  shall  proceed  therein  as  if  the  cause 
had  been  originally  commenced  in  said  district  court  and  the 
same  proceedings  had  been  taken  in  such  suit  or  prosecution  in 
said  district  court  as  shall  have  been  had  therein  in  said  State 
court  prior  to  its  removal,  and  said  district  court  shall  have  full 
power  to  hear  and  determine  said  cause.    [M.C.M.,  par.  ^5^.] 

"Art.  118.  Officers  —  Separation  from  service.  —  No 
officer  shall  be  discharged  or  dismissed  from  the  service  except 
by  order  of  the  President  or  by  sentence  of  a  general  court- 
martial;  and  in  time  of  peace  no  officer  shall  be  dismissed  except 
in  pursuance  of  the  sentence  of  a  court-martial  or  in  mitigation 
thereof;  but  the  President  may  at  any  time  drop  from  the  rolls 
of  the  Army  any  officer  who  has  been  absent  from  duty  three 
months  without  leave  or  who  has  been  absent  in  confinement  in 
a  prison  or  penitentiary  for  three  months  after  final  conviction 
by  a  court  of  competent  jurisdiction.  [M.C.M.,  pars.  15,  38, 
Jt2,  U,  S20,  378,  382,  391-393,  ^03.] 

"Art.  119.  Rank  and  precedence  among  regulars, 
militia,  and  voLtTNTEERS.  —  That  in  time  of  war  or  public 
danger,  when  two  or  more  officers  of  the  same  grade  are  on 
duty  in  the  same  field,  department,  or  command,  or  of  organiza- 
tions thereof,  the  President  may  assign  the  command  of  the 


45 

forces  of  such  field,  department,  or  command,  or  of  any  organi- 
zation thereof,  without  regard  to  seniority  of  rank  in  the  same 
grade.  In  the  absence  of  such  assignment  by  the  President, 
officers  of  the  same  grade  shall  rank  and  have  precedence  in  the 
following  order,  without  regard  to  date  of  rank  or  commission 
as  between  officers  of  different  classes,  namely:  First,  officers 
of  the  Regular  Army  and  officers  of  the  Marine  Corps  detached 
for  service  with  the  Army  by  order  of  the  President;  second, 
officers  of  forces  drafted  or  called  into  service  of  the  United 
States;  and,  third,  officers  of  the  volunteer  forces:  Provided, 
That  officers  of  the  Regular  Army  holding  commissions  in  forces 
drafted  or  called  into  the  service  of  the  United  States  or  in  the 
volunteer  forces  shall  rank  and  have  precedence  under  said 
commissions  as  if  they  were  commissions  in  the  Regular  Army; 
the  rank  of  officers  of  the  Regular  Army  under  commissions  in 
the  National  Guard  as  such  shall  not,  for  the  purposes  of  this 
article,  be  held  to  antedate  the  acceptance  of  such  officers 
into  the  service  of  the  United  States  under  said  commissions. 
[M.C.M.,  pars.  10-12.] 

"Art.  120.  Command  when  different  corps  or  com- 
mands HAPPEN  TO  JOIN.  —  When  different  corps  or  commands 
of  the  mihtary  forces  of  the  United  States  happen  to  join  or 
do  duty  together  the  officer  highest  in  rank  of  the  line  of  the 
Regular  Army,  Marine  Corps,  forces  drafted  or  called  into  the 
service  of  the  United  States  or  Volunteers,  there  on  duty,  shall, 
subject  to  the  provisions  of  the  last  preceding  article,  command 
the  whole  and  give  orders  for  what  is  needful  in  the  service, 
unless  otherwise  directed  by  the  President.  [M.C.M.,  pars. 
10-12,  U,  21,  25.] 

"Art.  121.  Complaints  of  wrongs.  —  Any  officer  or  soldier 
who  believes  himself  wronged  by  his  commandmg  officer,  and, 
upon  due  application  to  such  commander,  is  refused  redress, 
may  complain  to  the  general  commanding  in  the  locality  where 


46 

the  officer  against  whom  the  complaint  is  made  is  stationed. 
The  general  shall  examine  into  said  complaint  and  take  prop>er 
measures  for  redressing  the  wrong  complained  of;  and  he  shall, 
as  soon  as  possible,  transmit  to  the  Department  of  War  a  true 
statement  of  such  complaint,  with  the  proceedings  had  thereon." 
[M.C.M.,  pars.  104,  4S5.] 

Sec.  4.  The  provisions  of  section  three  of  this  Act  shall  take 
efiFect  and  be  in  force  on  and  after  the  first  day  of  March,  nine- 
teen hundred  and  seventeen:  Provided,  That  articles  four, 
thirteen,  fourteen,  fifteen,  twenty-nine,  forty-seven,  forty-nine, 
and  ninety-two  shall  take  effect  immediately  upon  the  approval 
of  this  Act.    [M.C.M. ,  par.  4^6.] 

Sec.  5.  That  all  offenses  committed  and  all  penalties,  for- 
feitures, fines,  or  liabilities  incurred  prior  to  the  taking  effect 
of  this  Act,  under  any  law  embraced  in  or  modified,  changed, 
or  repealed  by  this  Act,  may  be  prosecuted,  punished,  and 
enforced  in  the  same  manner  and  with  the  same  effect  as  if 
this  Act  had  not  been  passed.    [M.C.M.,  par.  487.] 

Sec.  6.  All  laws  and  parts  of  laws  in  so  far  as  they  are  incon- 
sistent with  this  Act  are  hereby  repealed.    [M.C.M.,  page  IX.] 

Approved,  August  29,  1916. 


I 


47 

PART  III 

PROBLEMS  1 

For  each  of  the  following  statements  of  fact  it  is  necessary  to 
determine  (a)  whether  there  is  a  military  offense,  (b)  under 
which  of  the  Articles  of  War  the  offense,  if  any,  belongs,  (c) 
what  should  be  the  tribunal,  and  (d)  how  a  charge  and  specifica- 
tion should  be  framed  ^  in  case  the  tribunal  should  be  a  court- 
martial. 

PROBLEM   1 

From  7  a.m.,  March  23,  1917,  until  5.30  p.m.,  March  24, 
1917,  Private  Samuel  Kelham,  Company  B,  2d  Field  Battahon, 
Signal  Corps,  U.  S.  Army,  at  Camp  Stewart,  Texas,  absented 
himself  from  his  company  without  permission,  after  having 
gone  to  the  properly  appointed  place  for  the  performance  of 
duty  as  Kitchen  Police  to  which  he  had  been  detailed. 

PROBLEM   2 

At  Brownsville,  Texas,  during  troop  drill  on  April  13,  1917, 
Private  Henry  Williams,  of  Machine  Gun  Troop,  Seventh  Cav- 
alry, was  ordered  by  First  Lieutenant  James  I.  Kelsey,  Seventh 
Cavalry,  to  ride  horse  No.  43.  He  refused  to  ride  the  horse. 
The  horse  was  slow  and  stubborn,  but  not  vicious. 


1  Each  statement  is  based  upon  some  case  brought  before  a  court- 
martial  since  the  present  Articles  of  War  went  into  effect;  but  names  of 
persons  and  of  places  have  been  changed. 

2  M.C.M.,  pars.  61-74  and  pages  333-352. 


I 
I 


48 

PROBLEM  3 

Private  William  Clark,  Company  K,  26tli  Infantry,  at  Fort 
Grant,  Canal  Zone,  on  February  22,  1917,  procured  himself  to 
be  enlisted  by  concealing  from  First  Lieutenant  Henry  Q.  King, 
Medical  Reserve  Corps,  a  recruiting  officer,  the  fact  that  under 
the  name  of  William  Park  he  had  been  dishonorably^  discharged 
from  Battery  E,  6th  Field  Artillery,  on  April  19,  1912,  pursuant 
to  a  sentence  of  court-martial.  After  his  last  enlistment  he  re- 
ceived pay  and  allowances. 

PROBLEM  4 

At  Bosque  Bonite  Ranch,  Texas,  on  March  22,  1917,  Private 
Knox  K.  Smith,  Company  K,  34th  Lifantry,  refused  to  submit 
to  a  surgical  operation  prescribed  by  First  Lieutenant  Larz  K. 
Trask,  Medical  Reserve  Corps,  the  operation  being  one  without 
appreciable  risk  to  life. 

PROBLEM  5 

Private  Charles  H.  Anderson,  Troop  H,  14th  Cavalry,  at 
Fort  Kamehameha,  Hawaii  Territory,  on  March  7,  1917, 
received  a  pass  from  noon  until  reveille  next  morning.  In  the 
afternoon  of  March  8  he  was  seen  in  Honolulu  by  his  captain 
and  was  ordered  to  return  to  the  fort  by  a  train  starting  in  an 
hour  and  a  half.  Before  the  train  started,  he  went  to  a  pier  and 
boarded  a  steamship  which  was  bound  for  Kaui.  He  was  then 
in  uniform;  but  the  uniform  was  covered  with  overalls  and  a 
brown  coat,  and  for  the  cap  was  substituted  a  fireman's  cap. 
A  harbor  police  officer  arrested  him  and  asked  him  where  he  was 
going.  Andecson  said,  "Any  old  place."  At  the  time  of  the 
arrest  the  train  had  been  gone  for  an  hour.  Anderson  was  not 
drunk  on  March  8,  but  he  had  been  drinking  the  night  before. 


49 

PROBLEM  6 

Private  Aaron  K.  Keyser,  Company  G,  34th  Infantry,  at 
Camp  Wilson,  Texas,  on  April  7,  1917,  after  the  Articles  of  War 
had  been  read  to  the  company  on  notification  of  the  declaration 
of  the  state  of  war  with  Germany,  loaded  his  rifle  and  said, 
"I'll  kill  myself  rather  than  go  to  war  and  get  killed."  On  April 
19,  at  the  same  place,  he  stole  one  bandoleer  of  ball  ammunition, 
caliber  30,  model  1906,  of  the  value  of  $1.56,  property  of  the 
United  States  issued  to  Corporal  W^illiam  Mills,  Company  G, 
84th  Infantry,  which  had  been  intended  for  the  military  serv- 
ice of  the  Government.  Keyser  sold  this  ammunition  the 
same  day. 

PROBLEM  7 

At  Schofield  Barracks,  Hawaii  Territory,  on  March  4,  1917, 
Private  Richard  K.  Phelps,  Company  L,  4th  Field  Artillery, 
negligently  lost  an  olive-drab  sweater,  value  $2.40,  military 
property  belonging  to  the  United  States. 

PROBLEM  8 

On  March  8,  1917,  Bugler  Henry  Pitkin,  Fifth  Company, 
Coast  Artillery  Corps,  was  tried  before  a  special  court-martial 
at  Fort  Grant,  Canal  Zone,  for  having  assaulted  a  postal  clerk. 
He  was  sworn  as  a  witness,  and  he  testified  that  in  the  alter- 
cation with  the  postal  clerk  he  used  no  bad  language.  William 
K.  Jones  and  John  Sheldon  were  present  at  the  altercation; 
and  they  are  now  ready  to  testify  that  Pitkin's  testimony  was 
untrue. 

PROBLEM  9 

At  Fort  Shafter,  Hawaii  Territory,  Private  James  Sullivan, 
at  2  A.M.,  March  12,  1917,  had  in  his  possession  a  bottle  of  in- 


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toxicating  liquor  and  was  prowling  around  officers'  quarters  in 
xiolation  of  the  restrictions  imposed  upon  class  "B"  conduct 
grade,  in  which  class  he  had  been  placed. 

PROBLEM  10 

On  March  23,  1917,  Private  Henry  Judson,  Company  C, 
7th  Infantry,  at  Fort  Oglethorpe,  Ga.,  talked  and  swore  in  the 
ranks  while  at  drill.  Captain  John  S.  Dilworth,  7th  Infantry, 
his  superior  officer,  then  put  him  under  arrest.  The  arrest  was 
administered  by  causing  a  sentry  to  go  about  behind  him. 
The  next  day  Judson  went  to  Captain  Dilworth  and  asked  that 
the  sentry  be  taken  off  and  that  confinement  in  the  guard  house 
be  substituted.  The  request  was  refused,  and  thereupon  Judson 
swore  at  Captain  Dilworth. 

PROBLEM  11 

John  C.  Duncan,  Private,  Troop  G,  12th  Cavalry,  carelessly 
discharged  a  service  pistol  in  his  tent,  at  Culberson's  Ranch, 
N.  M.,  in  violation  of  orders,  on  March  27, 1917.  He  was  ordered 
by  his  commanding  officer  into  confinement.  On  March  29, 
1917,  he  escaped  from  confinement,  at  Laing's  Ranch,  N.  M., 
before  he  had  been  set  at  liberty. 

PROBLEM  12 

Private  David  G.  King,  Troop  B,  Third  Cavalry,  having  re- 
ceived a  command  from  his  superior  officer,  First  Lieutenant 
Estes  M.  Hord,  Third  Cavalry,  to  go  out  for  drill,  and  having 
received  an  order  to  the  same  effect  from  Sergeant  Thomas  J. 
Murphy,  Troop  B,  Third  Cavalry,  in  the  discharge  of  his  office, 
willfully  disobeyed,  at  Fort  Randolph,  Canal  Zone,  on  March 
13, 1917. 


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PROBLlEM   13 


On  March  21,  1917,  Private  Peter  A.  Fish,  Company  A,  3d 
Infantry,  at  Fort  Oglethorpe,  Ga.,  was  drunk  in  the  company's 
quarters  at  seven  o'clock  in  the  evening.  The  same  night,  while 
still  drunk,  he  took  from  the  cooks'  supphes  twenty-five  pounds 
of  pork  sausage,  worth  $7.62,  twenty-two  pounds  of  ham, 
worth  $4.81,  and  seven  pounds  of  cheese,  worth  $1.42,  all  this 
being  property  of  the  company.  He  put  this  property  in  a  box, 
which  he  left  at  the  company's  bakery,  and  he  told  one  of  the 
cooks  that  he  had  done  all  this,  that  he  had  done  it  as  a  joke 
on  the  cooks,  and  that  the  property  would  be  found  at  the 
bakery.    The  property  was  found  the  same  night. 

PROBLEM   14 

Private  Henry  Henderson,  Company  K,  20th  Infantry,  was 
drunk  in  camp  at  Camp  Wilson,  Texas,  on  April  13,  1917. 

PROBLEM   15 

Private  Samuel  K.  Hurd,  Company  B,  25th  Infantry,  on 
guard  as  a  sentinel  at  El  Paso,  Texas,  April  16,  1917,  was  found 
asleep.  He  was  sixteen  years  old.  He  had  been  in  the  service 
for  three  months.  He  had  gone  on  guard  at  four  o'clock  in  the 
morning.  After  walking  on  guard  for  about  an  hour  and  fifteen 
minutes,  he  felt  a  cramp  and  sat  down  to  rest.  It  was  then  that 
he  fell  asleep. 

PROBLEM   16 

Private  Francis  Leary,  Company  C,  3d  Infantry,  on  March  10, 
1917,  at  Panama,  R.  P.,  wrongfully  used  cocaine,  a  narcotic 
drug. 


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